Amendment to Section 12(b). Effective as of the Amendment Closing Date, Section 12(b) of the Agreement is hereby amended and restated in its entirety to read as follows:
Amendment to Section 12(b). Section 1.2(b) of the Agreement is deleted in its entirety and replaced with the following text: “At least two (2) Business Days prior to the Closing Date, the Sellers’ Representatives shall deliver to Buyer a statement of the Company’s estimate of the Aggregate Closing Consideration (such amount, the “Estimated Aggregate Closing Consideration”), including the Company’s calculation of each of the components thereof (such statement, the “Estimated Closing Statement”), which estimate shall be prepared by the Company in good faith based upon the books and records of the Company at and prior to the Closing, using methods, practices, principles, policies and procedures consistent with past practices and in accordance with Schedule 1.2(a)(ii).”
Amendment to Section 12(b). Section 12b. is hereby amended and restated to read as follows:
Amendment to Section 12(b). Section 12(b) of the Agreement is hereby deleted and replaced in its entirety by the following:
Amendment to Section 12(b). Section 1.2(b) of the BTA shall be amended and restated in its entirety as follows: “all accrued liabilities of Seller for severance payments with respect to Transferred Employees to the extent not owed to such Transferred Employees as of the Effective Time (the ‘Severance Liability’), the calculation of which is as set forth in the formula on Schedule 1.2(b) hereto;”
Amendment to Section 12(b). Section 1.2(b) of the Master Purchase Agreement is hereby deleted and replaced in its entirety with the following:
Amendment to Section 12(b). Section 12(b) of the Financing Agreement shall be amended by deleting Section 12(b) in its entirety and by substituting the following new Section 12(b) in lieu thereof:
Amendment to Section 12(b). Section 1.2(b) shall be deleted in its entirety and replaced with the following: “In the event that the combined tangible net worths of NFS and Memorial as of the Closing Date) (which shall include a good faith estimate of the tax effect of the transaction set forth in the Agreement and Plan of Reorganization attached as a new Exhibit D to this Agreement (“Agreement and Plan of Reorganization”)) is less than $3,450,000, any difference in combined tangible net worths and $3,450,000 shall be deducted dollar for dollar from the Purchase Price. In addition to the Purchase Price, Encore shall deliver to Xxxxxx the following: (i) in the event that the Merger described in the Agreement and Plan of Reorganization is consummated on or before May 31, 2005, Encore shall pay Xxxxxx 100% of the Merger Consideration as defined in that Agreement, minus the dollar amount of any tax consequences not included in the estimate above to Encore resulting from the transaction, or (ii) in the event that the Merger described in the Agreement and Plan of Reorganization is consummated after May 31, 2005, Encore shall pay Xxxxxx 50% of the Merger Consideration as defined in that Agreement minus (x) any net operating losses related to the Trust Accounts, (y) the dollar amount of any tax consequences not included in the estimate above to Encore resulting from the transaction and (z) any legal, accounting or other expenses incurred by Encore related to the transaction.”
Amendment to Section 12(b). Section 12(b) of the Guaranty is hereby amended by (a) deleting the word “and” immediately preceding clause (iv) and replacing it with a comma and (b) adding the following new clause (v) in the appropriate numerical order: “and (v) the transactions contemplated by the Merger Agreement may be consummated.”
