MERGER AGREEMENT
EXHIBIT 10.2
THIS MERGER AGREEMENT (this “Agreement”), dated June 5, 2008, is made by and between
EZCORP, Inc., a Delaware corporation (“EZCORP”), Value Merger Sub, Inc., a Florida
corporation to be formed (the “Merger Sub”) and Value Financial Services, Inc., a Florida
corporation, (the “Company”) (together, the “Constituent Corporations”).
RECITALS:
A. The boards of directors of each of the Constituent Corporations have each determined that
it is advisable and in the best interests of their respective shareholders for the Merger Sub and
the Company to enter into a business combination on the terms and subject to the conditions set
forth herein.
B. In furtherance of such combination, the boards of directors of each of the Constituent
Corporations have each approved the merger of the Merger Sub, a corporation to be formed as a
wholly owned subsidiary of EZCORP, with and into the Company (the “Merger”) in accordance
with the terms of this Agreement and the applicable provisions of the Florida Business Corporation
Act (“FBCA”).
C. This Merger is authorized by Section 1101 of the FBCA.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein made, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Merger
Sub, EZCORP and the Company agree as follows:
1 Definitions.
For purposes of this Agreement, the following terms shall have the meanings set forth below
and any derivatives of the terms shall have correlative meanings:
“Credit Facility” shall mean the $37 million financing arrangement between the Company
and Fifth Third Bank, dated June 15, 2007.
“Contracts” shall mean, collectively, all oral and written contracts, agreements,
instruments, documents, leases, indentures, insurance policies, undertakings or other obligations.
“Disclosure Schedule” shall mean the disclosure schedule attached hereto and
incorporated herein.
“EZCORP Shares” shall mean 1,625,000 shares of class A non-voting common stock to be
issued by EZCORP and exchanged in the Merger.
“Financial Statements” shall mean, collectively, the audited financial statements
(including balance sheets and statement of earnings, stockholders’ equity and cash flow) of the
Company for each of its fiscal years ending December 31, 2004, through and including December 31,
2007.
“Governmental Authority” shall mean the government of the United States or any foreign
jurisdiction, any state, county, municipality or other governmental or quasi governmental unit, or
any agency, board, bureau, instrumentality, department or commission (including any court or other
tribunal) of
any of the foregoing and any body exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, regulatory or taxing authority of any nature whatsoever.
“Xxxx-Xxxxx-Xxxxxx Act” shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
“Knowledge” shall mean that an individual:
(1) is actually aware of such fact or other matter, or
(2) a prudent individual in the position of the Company could be expected to discover or
otherwise become aware of such fact or other matter in the course of conducting a reasonable
investigation concerning the existence of such fact or other matter.
A Person other than an individual will be deemed to have “Knowledge” of a particular fact or
matter if any individual who is serving as a director, officer, partner, executor, or trustee of
such Person (or in any similar capacity) has, or at any time had, Knowledge of such fact or matter.
“Laws” shall mean, collectively, all federal, state, local, municipal, foreign or
international constitutions, laws, statutes, ordinances, rules, regulations, codes, or principles
of common law.
“Leases” shall mean, collectively, leases, contracts, agreements and other documents
providing the Company with a right to use specified real and/or personal property.
“Licenses” shall mean, collectively, governmental, regulatory, administrative and non
governmental licenses, permits, approvals, certifications, accreditations, notices and other
authorizations.
“Material Adverse Change” or “Material Adverse Effect” shall mean any materially
adverse change in or effect on the financial condition, business, operations, assets, properties or
results of operations of the affected party; provided, however, that none of the following shall be
deemed to have caused, constitute, or be taken into account in determining whether there has been a
Material Adverse Change or Material Adverse Effect: (1) any change or effect arising from or
relating to: (a) financial, banking or securities markets (including any disruption thereof and any
decline in the price of any security or any market index); (b) changes in United States generally
accepted accounting principles; (c) changes in the affected party’s general industry or the economy
of the U.S. as a whole; and (d) adverse changes or effects arising from the announcement or
consummation of the transactions contemplated hereby; (2) any change or effect in the Ordinary
Course; and (3) any change or effect that is cured before the earlier of (a) the Closing Date
and/or (b) the date on which this Agreement is terminated pursuant to Section 0.
“Orders” shall mean all decisions, injunctions, writs, guidelines, orders,
arbitrations, awards, judgments, subpoenas, verdicts or decrees entered, issued, made or rendered
by any Governmental Authority.
“Ordinary Course” shall mean the ordinary course of the Company’s business, consistent
with the past practices of the Company. The Ordinary Course does not include any transaction with
an officer, director, shareholder or investor of the Company.
“Person” shall mean any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint venture, estate,
trust, association, organization, labor union, or other entity or Governmental Authority.
“SEC” shall mean the United States Securities and Exchange Commission.
2 The Merger.
2.1 Merger. Upon the terms and conditions set forth in this Agreement, and in
accordance with the applicable provisions of the FBCA, at the Effective Date (defined in Section
2.2), the Merger Sub shall be merged with and into the Company, which latter shall be the surviving
corporation (the Company is also sometimes called the “Surviving Corporation” herein).
2.2 Continuing Corporate Existence. Except as may otherwise be set forth herein, the
corporate existence of the Company, with all its purposes, powers, franchises, privileges, rights
and immunities, shall continue unaffected and unimpaired by the Merger, and the corporate existence
and identity of the Merger Sub, with all its purposes, powers, franchises, privileges, rights and
immunities, at the Effective Date shall be merged with and into that of the Company, and the
separate corporate existence and identity of the Merger Sub shall thereafter cease except to the
extent continued by statute.
2.3 Effective Date. The Merger shall become effective at the date and time when the
articles of merger are filed with the Secretary of State of Florida (the “Effective Date”).
2.4 Corporate Governance.
(a) The Articles of Incorporation of the Company, as amended in the articles of
merger on the Effective Date, shall become the Articles of Incorporation of the Company
as the surviving corporation.
(b) The Bylaws of the Company, as amended on the Effective Date, shall become the
Bylaws of the Company as the surviving corporation.
(c) Those persons serving as directors and officers of the Merger Sub on the
Effective Date of the Merger shall become the directors and officers of the Company as of
the Effective Date.
(d) Those persons serving as directors and officers of the Company on the Effective
Date of the Merger shall cease holding their respective offices in the Company as of the
Effective Date.
2.5 Rights and Obligations of the Company. At the Effective Date, the Company as the
Surviving Corporation shall have the following rights and obligations.
(a) The Company shall have all the rights, privileges, immunities and powers and
shall be subject to all the duties and liabilities of a corporation organized under the
laws of the State of Florida.
(b) The Company shall possess all of the rights, privileges, immunities and
franchises, of either a public or private nature, of the Company and the Merger Sub, and
all property, real, personal and mixed, and all debts due on whatever account, and all
other chooses in action, and every other interest of or belonging or due to the Merger
Sub and the Company shall be taken and deemed to be transferred to or invested in the
Company without further act or deed.
(c) At the Effective Date, the Company shall thenceforth be responsible and liable
for all contracts, liabilities and obligations of the Company and the Merger Sub, and any
claim existing or action or proceeding pending by or against the Company or the Merger
Sub may be prosecuted against the Company as if the Merger had not occurred, or the
Company may be substituted in its place. Neither the rights of creditors nor any liens
upon the property of the Company.
2.6 Closing. Consummation of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Xxxxxxxxx Xxxxxxx, P.A., in Orlando, Florida
commencing at 10:00 A.M. on or before July 15, 2008, or as soon as possible thereafter when each of
the other conditions of this Agreement have been satisfied or waived, and shall proceed promptly to
conclusion, at such place, time and date as shall be determined by the parties hereto. The day on
which the Closing shall occur is herein called the “Closing Date.” Each of the Constituent
Corporations will cause to be prepared, executed, and delivered the Articles of Merger to be filed
with the Secretary of State of Florida and all other appropriate and customary documents as any
party or its counsel may reasonably request for the purpose of consummating the transactions
contemplated by this Agreement. All actions taken at the Closing shall be deemed to have been
taken simultaneously at the time the last of any such actions is taken or completed.
3 Conversion of Securities.
3.1 On the Effective Date, by virtue of the Merger and without any action on the part of
EZCORP, Merger Sub, the Company or the holders of the common stock of the Company:
(a) except as set forth in subsection 00:
(1) each share of common stock of the Company issued and outstanding
immediately prior to the Effective date shall be canceled and automatically
converted, subject to Section (c), into the right to receive $11.00 per share of
common stock of the Company (assuming for all purposes in this Section 3 the
exercise or conversion of all then outstanding options, warrants, conversion
rights, commitments or other rights to acquire the Company’s common stock, whether
vested or unvested), calculated and paid as follows:
A. up to 15 of the Company’s shareholders, each of whom is listed on
Schedule 1 (as said Schedule may be amended by the Company from time to
time prior to the Merger) and each of whom must be “accredited investors”
as that term is defined in SEC Rule 501, shall receive (i) a number of the
EZCORP Shares in the individual amounts set forth on Schedule 1, plus (ii)
a cash payment equal to $11.00 per common share owned by the shareholder,
minus the product of the number of the EZCORP Shares received by the
shareholder as set forth in Schedule 1 times the closing price per share
of EZCORP’s class A non-voting common stock on the NASDAQ Stock Market on
the business day immediately prior to the Closing Date; and
B. the remaining Company shareholders not listed on Schedule 1 shall
receive a cash payment of $11.00 per share;
(2) each share of common stock of the Company held in treasury by the Company or any
Subsidiary of the Company immediately prior to the Effective Date shall be canceled and
extinguished without any conversion thereof and no payment or distribution shall be made
with respect thereto;
(3) each share of common stock of Merger Sub issued and outstanding immediately
prior to the Effective Date shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of common stock of the Company; and
(4) {Intentionally Left Blank.}
(b) Notwithstanding any provisions of this Agreement to the contrary, shares of the
Company’s common stock which are issued and outstanding immediately prior to the Effective
Date and which are held by any Person who has properly exercised their appraisal rights
under the FBCA (the “Appraisal Shares”) will not be converted into or represent a right to
receive the applicable Merger Consideration pursuant to this Section 0. The holders
thereof will be entitled only to such rights as are granted by Section 1302 of the FBCA.
Each holder of Appraisal Shares who becomes entitled to payment for such shares of Company
common stock pursuant to Section 1302 of the FBCA will receive payment therefor from the
Company in accordance with the FBCA; provided, however, that (1) if any
such holder of Appraisal Shares fails to establish its entitlement to appraisal rights as
provided in Section 1323 of the FBCA, or (2) if any such holder of Appraisal Shares
effectively withdraws its demand for appraisal of such shares of the Company’s common stock
or loses its right to appraisal and payment for its shares of the Company’s common stock
under Section 1323 or 1326 of the FBCA, such holder will forfeit the right to appraisal of
such shares of the Company’s common stock and each such share of the Company’s common stock
will be treated as if such share had been converted, as of the Effective Date, into a right
to receive the applicable Merger Consideration, without interest thereon, as provided in
subsection 00.
3.2 Exchange of Certificates.
(a) Exchange Agent. EZCORP shall deposit, or shall cause to be deposited,
with American Stock & Transfer Company or such other bank or trust company that may be
designated by EZCORP and is reasonably satisfactory to the Company (the “Exchange
Agent”), for the benefit of the holders of shares of the Company’s common stock, for
exchange in accordance with this Section 0 through the Exchange Agent, cash and
certificates representing the EZCORP Shares issuable pursuant to Section 0 as of the
Effective Date, the aggregate of such cash and certificates for the EZCORP Shares, being
hereinafter referred to as the “Exchange Fund”). If requested by the Exchange
Agent, the Company and EZCORP will enter into a mutually acceptable exchange agent
agreement which will set forth the duties, responsibilities and obligations of the Exchange
Agent. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the EZCORP
Shares contemplated to be issued pursuant to Section 0, out of the Exchange Fund. Except
as contemplated by Section 3.2(f) hereof, the Exchange Fund shall not be used for any other
purpose.
(b) Exchange Procedures. As promptly as practicable after the Effective Date
(but in any event within five business days after the Effective Date), EZCORP shall cause
the Exchange Agent to mail to each holder of record of a certificate or certificates which
immediately prior to the Effective Date represented outstanding shares of Company’s common
stock (the “Certificates”) (1) a letter of transmittal (which shall be in customary
form and shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the Exchange
Agent) and (2) instructions for use in effecting the surrender of the Certificates in
exchange for cash and certificates representing EZCORP Shares. Upon surrender to the
Exchange Agent of a Certificate for cancellation, together with such letter of transmittal,
duly executed and completed in accordance with the instructions thereto, and such other
documents as may be reasonably required pursuant to such instructions, the holder of such
Certificate shall be entitled to receive in exchange therefor cash and a certificate
representing that number of whole EZCORP class A non-voting common stock which such holder
has the right to receive in respect of the shares of Company’s common stock formerly
represented by such Certificate (after taking into account all shares of the Company’s
common stock then held by such holder) to which such holder is entitled pursuant to Section
0 (the EZCORP Shares and cash being, collectively, the “Merger Consideration”), and
the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of
ownership of shares of Company common stock which is not registered in the transfer records
of the Company, the applicable Merger Consideration may be issued to a transferee if the
Certificate representing such shares of Company common stock is properly endorsed and
presented to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and by evidence satisfactory to EZCORP that any
applicable share transfer taxes have been paid. Until surrendered as contemplated by this
Section, each Certificate shall be deemed at all times after the Effective Date to
represent only the right to receive upon such surrender the applicable Merger
Consideration. No interest shall be paid or shall accrue on the cash payable upon
surrender of any Certificate.
(c) No Further Rights in Company Common Stock. The Merger Consideration paid
and issued (and represented by certificates delivered) upon conversion of the shares of the
Company’s common stock in accordance with the terms hereof shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of the Company’s common
stock.
(d) No Fractional Shares. No certificates or scrip representing fractional
EZCORP class A non-voting common stock shall be issued upon the surrender for exchange of
Certificates. In lieu of any such fractional share, each holder of Company common stock
who would otherwise have been entitled to a fraction of a EZCORP class A non-voting common
stock upon surrender of Certificates for exchange shall be entitled to have the number of shares such holder is to receive rounded up to the next whole number of shares.
(e) Termination of Exchange Fund. Any portion of the Exchange Fund which
remains undistributed to the holders of shares of Company common stock for twelve months
after the Effective Date shall be delivered to EZCORP, upon demand, and any holders of shares of Company common stock who have not theretofore complied with this Section 0 shall
thereafter look only to EZCORP for the applicable Merger Consideration. Any portion of the
Exchange Fund remaining unclaimed by holders of shares of Company common stock as of a date
which is immediately prior to such time as such amounts would otherwise escheat to or
become property of any government entity shall, to the extent permitted by applicable Law,
become the property of EZCORP free and clear of any claims or interest of any person
previously entitled thereto.
(f) No Liability. None of EZCORP, Merger Sub, or the Company shall be liable
to any holder of shares of Company common stock for any such Merger Consideration delivered
to a public official pursuant to any abandoned property, escheat or similar Laws.
(g) Lost Certificates. If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Company, the posting by
such person of a bond, in such reasonable amount as the Company may direct, as indemnity
against any claim that may be made against it with respect to such Certificate, the
Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate, the
applicable Merger Consideration.
3.3 Additional Consideration.
(a) The parties contemplate that some or all of the EZCORP Shares will be offered for
sale by the Company shareholders listed on Schedule 1 (the “Selling EZCORP
Shareholders”) shortly after the Registration Statement becomes effective. The Selling
EZCORP Shareholders will be offered the opportunity to sell 401,489 shares in one or more
block trades or negotiated transactions through Xxxxxxxx, Inc. The Selling EZCORP
Shareholders will also be offered the opportunity to sell their remaining EZCORP Shares in
second and subsequent block trades or negotiated transactions after the sale of the initial
401,489 shares is executed. The Selling EZCORP Shareholders will cause the EZCORP Shares
that they wish to sell to be deposited with Xxxxxxxx, Inc., as soon as practicable after
Closing. Xxxxxxxx, Inc., or another broker designated by the Company will sell the shares
so deposited within five business days of the effective date of the Registration Statement.
Promptly after the settlement date for the sale of
the 401,489 shares by Xxxxxxxx, Inc., Xxxxxxxx, Inc., will notify EZCORP and the
Selling EZCORP Shareholders of the per share sales price of the shares. To the extent that
the average sales price per share of the initial 401,489 shares (after deducting any
commissions, expenses or discounts paid with respect to the sale) is less than the closing
market price per share of EZCORP’s class A non-voting common stock on the business day
immediately prior to the Closing Date (the “Sale Discount”), EZCORP will pay Sale
Discount times 401,489 to the Selling EZCORP Shareholders, pro rata according to the number
of shares sold on behalf of each Selling EZCORP Shareholder. EZCORP will cause the payment
in respect of the Sale Discount to be made within three business days of the settlement
date of the shares so sold.
3.4 Stock Transfer Books. At the Effective Date, the stock transfer books of the
Company shall be closed and there shall be no further registration of transfers of shares of
Company common stock thereafter on the records of the Company. From and after the Effective Date,
the holders of Certificates representing shares of Company common stock outstanding immediately
prior to the Effective Date shall cease to have any rights with respect to such shares of Company
common stock, except as otherwise provided in this Agreement or by Law. On or after the Effective
Date, any Certificates presented to the Exchange Agent or EZCORP for any reason shall be converted
into the applicable Merger Consideration.
3.5 Closing Certificates. At the Closing, (a) EZCORP shall deliver to the Company a
certificate, in form and substance satisfactory to the Company and signed by its Chief Executive
Officer and Chief Financial Officer, certifying in reasonable detail the calculation of the amount
of fully diluted EZCORP non-voting common stock on the Closing Date, together with all supporting
materials used in such calculation, and (b) the Company shall deliver to EZCORP a certificate,
signed by its Chief Executive Officer and Chief Financial Officer, certifying in reasonable detail
the calculation of the aggregate number of Company common stock, including common stock issued and
outstanding immediately prior to the Effective Date.
3.6 Changes in Capitalization. If, between the date of this Agreement and the
Effective Date, the outstanding shares of the EZCORP’s class A non-voting common stock or the
Company’s common stock are changed into a different number or class of shares by means of any stock
split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of
shares, reclassification, recapitalization or other similar transaction, then the Merger
Consideration shall be appropriately adjusted; provided that no adjustment shall be made under this
Section if the number of outstanding shares of the Company’s common stock increases as a result of
the exercise of the Company’s stock options, warrants, conversion rights or other rights to acquire
the Company’s common stock.
3.7 Appraisal Shares. No more than ten (10) days after to the Effective Date, the
Surviving Corporation shall give notice in writing to each holder of Appraisal Shares in the form
required by Section 1322 of the FBCA. Within forty (40) days after the date on which notice is
mailed, each holder of Appraisal Shares must either accept the Company’s offer as stated in the
Company’s notice or, if the offer is not accepted, such shareholder’s estimated fair value of the
shares of the Company common stock and a demand for the payment of such shareholder’s estimated
value plus interest. If any holder of Appraisal Shares fails to respond as provided in this
Section 3.6, then such shareholder shall have waived, in accordance with the FBCA, the right to
demand appraisal with respect to the shares of the Company common stock.
4 Conduct Pending Closing.
4.1 From the date of this Agreement until Closing, the Company will
(a) conduct its business only in the Ordinary Course unless otherwise expressly
approved by EZCORP in writing (which approval will not be unreasonably withheld conditioned
or delayed);
(b) use its reasonable best efforts to preserve intact the current business
organization of the Company, keep available the services of the current officers,
employees, and agents of the Company, and maintain the relations and good will with
suppliers, customers, landlords, creditors, employees, agents, and others having business
relationships with the Company;
(c) disclose to EZCORP the estimated cost of receiving a fairness opinion from a third
party as to this Agreement and the terms hereof;
(d) confer with EZCORP concerning operational matters of a material nature;
(e) provide to EZCORP copies of the Company’s unaudited interim financial statements
for each three month period ended March 31, June 30 and September 30 of each fiscal year
from the date of this Agreement until its Closing or termination; together with internally
prepared supplemental notes concerning the status of the Company’s assets and liabilities
for the interim three month periods, which interim financial statements shall be prepared
in accordance with generally accepted accounting principles maintained and applied on a
consistent basis throughout the indicated periods, and fairly present the financial
condition and results of operation of the Company at the dates and for the relevant periods
indicated, except that the interim unaudited financial statements do not include footnotes
and certain financial presentations normally required under generally accepted accounting
principles; and
(f) Notwithstanding anything to the contrary set forth in this Agreement, no party to
this Agreement will be required to undertake and/or comply with any covenant, obligation,
request or otherwise undertake any action required by this Agreement, if doing so would be,
or be deemed to be, in violation of any Laws, based upon the reasonable advice of such
party’s legal counsel.
4.2 Prior to Closing, the Company, Merger Sub and EZCORP will cooperate in obtaining every
consent, approval, ratification, waiver or other authorization (“Consent”) necessary under
any Contract, Order, License, Law or restriction to which the Company or EZCORP is subject or a
party to the extent failure to obtain any such Consent would have a Material Adverse Effect as a
result of the Closing and consummation of this Agreement.
5 Representations and Warranties by the Company.
The Company represents and warrants that, except as set forth in the attached Disclosure
Schedule, which Disclosure Schedule shall be deemed to be representations and warranties as if made
hereunder:
5.1 Enforceability. The Company has all necessary power and authority to enter into
and, subject to the requisite approval by the Company’s shareholders, consummate the transactions
contemplated by this Agreement in accordance with its terms. This Agreement is a valid and binding
obligation of the Company, enforceable against it in accordance with its terms.
5.2 Organization and Qualification. The Company is a corporation duly organized and
validly existing under the Laws of the State of Florida. The Company is qualified to transact
business as a domestic or foreign corporation or organization in every jurisdiction where the
failure to so qualify would have a Material Adverse Effect.
5.3 Conflicting Obligations on Execution. The execution and delivery of this
Agreement do not: (a) conflict with or violate any provisions of, or result in the maturation or
acceleration of, any obligations under any Contract, Order, License, Law or restriction to which
the Company is subject or a party to the extent such conflict or violation has a Material Adverse
Effect; or (b) violate any restriction or limitation, or result in the termination, or loss of any
right (or give any third party the right to cause such termination or loss), of any kind to which
they are bound or have to the extent such violation, termination or loss has a Material Adverse
Effect, other than the Credit Facility and certain Leases.
5.4 Capitalization. The capitalization of the Company as set forth in the Investor
Listing dated December 31, 2007 (“Cap Table”) and delivered to EZCORP is complete and accurate as
of the execution of this Agreement. There are no outstanding options, warrants, convertible
securities or other rights to subscribe for or acquire any capital stock or securities convertible
into capital stock of the Company, other than as set forth in the Cap Table. All capital stock has
been issued in compliance with applicable federal and state securities Laws.
5.5 Organizational Documents. True, correct and complete copies of the articles of
incorporation, by-laws and other organizational documents, as amended, of the Company have been
delivered to EZCORP. Except as provided in this Agreement, there has been no change in the rights,
preferences or other terms of the Company’s capital stock since the filing of the Company’s Amended
and Restated Articles of Incorporation with the Secretary of State of Florida on September 10,
2001.
5.6 Financial Statements. The Company has provided to EZCORP true and complete copies
of the Company’s audited Financial Statements for the fiscal years ending December 31, 2006, 2005
and 2004, and a draft of the Company’s Financial Statements for the fiscal year ended December 31,
2007. Within seven (7) days from the execution of this Agreement, the Company shall provide to
EZCORP audited Financial Statements for the fiscal year ended December 31, 2007 (“the 2007
Financial Statements”), which Financial Statements shall reflect no Material Adverse Change
from the information presented in the draft of the Company’s Financial Statements for the fiscal
year ended December 31, 2007, which was delivered to EZCORP on May 27, 2007, and unaudited interim
financial statements for the three month periods ended March 31, 2008 and 2007, together with
internally prepared supplemental notes concerning the status of the Company’s assets and
liabilities for the interim three month periods. The Company’s Financial Statements and other
books and records of account accurately reflect all of the assets, liabilities, transactions and
results of operations of the Company, and the Financial Statements have been prepared based upon
and in conformity therewith. The Financial Statements have been prepared in accordance with
generally accepted accounting principles maintained and applied on a consistent basis throughout
the indicated periods, and fairly present the financial condition and results of operation of the
Company at the dates and for the relevant periods indicated, except that interim unaudited
Financial Statements do not include footnotes and certain financial presentations normally required
under generally accepted accounting principles.
5.7 Licenses. The Company possesses all Licenses as are necessary for the consummation
of the transactions contemplated hereby or the conduct of its business or operations where the
failure to have such License would have a Material Adverse Effect. Neither the execution of this
Agreement nor the consummation of the transactions contemplated hereby will result in the
revocation, or an adverse change in the terms or conditions, of any of the Licenses, to the extent
such revocation or adverse change has a Material Adverse Effect, and all Licenses shall continue in
full force and effect in accordance with their present terms unaffected by the consummation of the
transactions contemplated hereby.
5.8 Litigation. There are no claims, lawsuits, actions, arbitrations or other
proceedings or governmental investigations (collectively, “Claims”) pending with respect to this
Agreement and the transactions contemplated hereby. The Company has not received written notice of
any Claims, which would have a Material Adverse Effect, pending or against the Company or any of
its officers, directors, employees or affiliates involving, affecting or relating to the Company or
the transactions contemplated by this Agreement, nor have any such matters been threatened against
the Company. There
are no outstanding judgments, orders, injunctions, decrees, stipulations or awards (whether
rendered by a court or administrative agency, or by arbitration) regarding the Company.
5.9 Compliance With Law. To the Knowledge of the Company, the conduct of the
Company’s business does not violate, and the Company is not in default under, any Law or Order.
5.10 Brokerage. The Company has not incurred, nor made commitment for, any brokerage,
finder’s or similar fee in connection with the transaction contemplated by this Agreement, other
than to Xxxxxxxx Inc. and to JMP Securities, Inc.
5.11 No Material Adverse Change. Since December 31, 2007, there has not been any
Material Adverse Change, and no event has occurred or circumstance exists that may result in a
Material Adverse Effect.
5.12 Representations and Warranties True and Correct. The representations and
warranties contained herein, and all other documents, certifications, materials and written
statements or information given to the Merger Sub or EZCORP by or on behalf of the Company or
disclosed on the Disclosure Schedule, do not include any untrue statement of a material fact or
omit to state a material fact required to be stated herein or therein in order to make the
statements herein or therein, in light of the circumstances under which they are made, not
misleading.
6 Merger Sub’s and EZCORP’s Representations and Warranties.
The Merger Sub and EZCORP represent and warrant that:
6.1 Organization. The Merger Sub is a corporation duly organized and validly existing
under the laws of the State of Florida. EZCORP is a corporation duly organized and validly
existing under the laws of the State of Delaware.
6.2 Enforceability; Conflicting Obligations. This Agreement and all other agreements
of the Merger Sub and EZCORP contemplated hereby are or, upon the execution thereof, will be the
valid and binding obligations of the Merger Sub and EZCORP enforceable against it in accordance
with their terms. The execution and delivery of this Agreement do not, the issuance and delivery of
the EZCORP Shares will not, and the consummation of the purchase of the Shares will not, conflict
with or violate any provision of the articles of organization of the Merger Sub or EZCORP, nor any
provisions of, or result in the acceleration of, any obligation of the Merger Sub or EZCORP.
6.3 Authorization. The Merger Sub and EZCORP has all necessary corporate power and
authority to enter into and perform the transactions contemplated herein in accordance with the
terms and conditions hereof. The execution and delivery of this Agreement, and the performance by
the Merger Sub and EZCORP of their obligations contained herein, have been duly approved by the
Merger Sub and EZCORP.
6.4 Brokerage. The Merger Sub and EZCORP have not incurred, nor made commitment for,
any brokerage, finder’s or similar fee in connection with the transactions contemplated by this
Agreement.
6.5 Litigation. There is no litigation, proceeding or governmental investigation
pending, or to the Merger Sub’s or EZCORP’s knowledge, threatened against or relating to the
transactions contemplated herein.
6.6 Isuance of EZCORP Shares. The EZCORP Shares to be exchanged for the Company’s
common stock will, when delivered to the Company’s shareholders, be validly issued, fully paid,
non-assessable and not subject to any pre-emptive rights.
6.7 Funds Available. Each of EZCORP and Merger Sub is solvent and, at Closing, EZCORP
will have all funds in place necessary to pay and deliver the cash portion of the Merger
Consideration as contemplated hereby without any contingencies existing. As of the date hereof
there are, and as of the Effective Date there will be, sufficient authorized and unissued shares of
EZCORP’s class A non-voting common stock to enable EZCORP to issue and deliver the portion of the
Merger Consideration consisting of EZCORP Shares as contemplated hereby.
6.8 Financial Reports and SEC Documents. EZCORP’s Annual Report on Form 10-K for the
fiscal year ended September 30, 2007, and all other reports, registration statements, definitive
proxy statements or information statements filed or to be filed by it with the SEC subsequent to
September 30, 2007 under the Securities Act of 1933, as amended (the “Securities Act”), or
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in the form
filed together with any amendments required to be made with respect thereto, that were required to
be filed with any applicable Governmental Authority under any applicable Law (collectively,
“SEC Documents”) as of the date filed, (a) complied in all material respects with the
applicable requirements under the Securities Act or the Exchange Act, as the case may be, and (b)
did not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and each of the balance sheets or statements of
condition contained in or incorporated by reference into any such SEC Document (including the
related notes and schedules thereto) fairly presents the consolidated financial position of EZCORP
as of its date, and each of the statements of income or results of operations and changes in
shareholders’ equity and cash flows or equivalent statements in such SEC Documents (including any
related notes and schedules thereto) fairly present the consolidated results of operations, changes
in shareholders’ equity and cash flows, as the case may be, of EZCORP for the periods to which they
relate, in each case in accordance with generally accepted accounting principles consistently
applied during the periods involved, except in each case as may be noted therein, subject to normal
year-end audit adjustments and the absence of footnotes in the case of unaudited statements.
6.9 Representations and Warranties True and Correct. The representations and
warranties contained herein, and all other documents, certifications, materials and written
statements or information given to the Company by or on behalf of the Merger Sub and EZCORP or
disclosed on the Disclosure Schedule, do not include any untrue statement of a material fact or
omit to state a material fact required to be stated herein or therein in order to make the
statements herein or therein, in light of the circumstances under which they are made, not
misleading.
7 Additional Agreements.
7.1 Xxxx-Xxxxx-Xxxxxx. The Merger Sub, EZCORP and the Company will file any
Notification and Report Forms and related material that it may be required to file with the Federal
Trade Commission and the Antitrust Division of the United States Department of Justice under the
Xxxx-Xxxxx-Xxxxxx Act, will use its commercially reasonable efforts to obtain an early termination
of the applicable waiting period, and will make any further filings pursuant thereto that may be
necessary, proper, or advisable in connection therewith. The fees and expenses of any such filing
shall be borne 50% by EZCORP and 50% by the Company.
7.2 Release of Xxxxxxxx Employment Agreement at Closing. At Closing, the Company
shall deliver to EZCORP an unconditional release of Xxxx Xxxxxxxx from all of his obligations under
the Employment Agreement between the Company and Xx. Xxxxxxxx effective as of January 1, 2007, and
an unconditional release of the Company by Xx. Xxxxxxxx from all of the Company’s obligations under
the Employment Agreement between the Company and Xx. Xxxxxxxx effective as of January 1, 2007. The
Company acknowledges that EZCORP intends to employ Xx. Xxxxxxxx as an executive of
Texas EZPAWN, L.P., immediately after Closing.
7.3 Section 382 Opinion. On or before June 30, 2008, the Company shall deliver to
EZCORP an opinion from the Company’s auditor, McGladrey & Xxxxxx, LLC, to the effect that, based on
the procedures performed and the facts and assumptions set forth in the opinion, the auditor has
concluded that the Company should not have experienced an ownership change, as defined in Section
382(g)(1), during the period beginning January 1, 1998 and ending December 31, 2007, no event has
occurred that caused or would cause an ownership change the Company under 26 U.S.C. § 382 and
federal regulations adopted thereunder (the “382 Opinion”), together with the auditors’
work papers and supporting information, whether created by the Company or by its auditors, relating
to the 382 Opinion.
7.4 Registration Statement.
(a) As promptly as practicable after the execution of this Agreement, EZCORP shall
prepare and file with the SEC a registration statement on Form S-3 or such other form as
appropriate to register the EZCORP Shares (together with any amendments thereof or
supplements thereto, the “Registration Statement”). EZCORP shall use its
reasonable best efforts to respond as promptly as practicable to any comments of the SEC
with respect thereto and to cause the Registration Statement to be declared effective by
the SEC. EZCORP shall take all or any action required under any applicable federal or
state securities laws in connection with the issuance of the EZCORP Shares. The Company
shall furnish all information concerning the Company as EZCORP may reasonably request in
connection with such actions and the preparation of the Registration Statement. EZCORP
shall advise the Company in writing as promptly as practicable after (1) the Registration
Statement has been declared effective by SEC, (2) any supplement or amendment to the
Registration Statement has been filed, (3) the issuance of any stop order with respect to
the Registration Statement, (4) the suspension of the qualification of the EZCORP’s Shares
covered thereby for offering or sale in any jurisdiction, or (5) the receipt of any request
by the SEC for amendment of the Registration Statement or comments thereon and responses
thereto or requests by the SEC for additional information, and EZCORP shall promptly
provide to the Company copies of all correspondence between EZCORP or any of its
representatives or advisors and the SEC.
(b) The information supplied by EZCORP for inclusion in the Registration Statement
shall not, at (1) the time the Registration Statement becomes effective under the
Securities Act and (2) the Effective Date, contain any untrue statement of a material fact
or fail to state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading. If, at any time prior to the Effective Date, any event or circumstance
relating to EZCORP or any EZCORP subsidiary, or their respective officers or directors,
that should be set forth in an amendment or a supplement to the Registration Statement
should be discovered by EZCORP, EZCORP shall promptly inform the Company thereof. All
documents that EZCORP is responsible for filing with the SEC in connection with the Merger
or the other transactions contemplated by this Agreement will comply as to form and
substance in all material respects with the applicable requirements of the Securities Act
and the rules and regulations thereunder and the Exchange Act and the rules and regulations
thereunder.
(c) The information supplied by the Company for inclusion in the Registration
Statement shall not, at (1) the time the Registration Statement becomes effective under the
Securities Act and (2) the Effective Date, contain any untrue statement of a material fact
or fail to state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading. If, at any time prior to the Effective Date, any event or circumstance
relating to the Company or any Company subsidiary, or their respective officers or
directors, that should be set forth in an amendment or a supplement to the Registration
Statement should be discovered by the Company, the Company shall promptly inform EZCORP.
7.5 Company Disclosure Statement.
(a) The Company shall prepare and mail to its shareholders a proxy or other
appropriate disclosure statement (the “Disclosure Statement”) with respect to the
conversion of its capital stock to common stock and approval of the Merger and this
Agreement. EZCORP shall furnish all information concerning EZCORP as the Company may
reasonably request in connection with such actions and the preparation of the Disclosure
Statement. The Company will provide EZCORP and Merger Sub drafts of, and solicit EZCORP’s
and Merger Sub’s comments on, the Disclosure Statement prior to delivering the Disclosure
Statement to its shareholders.
(b) The Proxy Statement shall include a copy of the fairness opinion identified in
9.4.
7.6 The Company shall use its reasonable best efforts to obtain the approval of a majority of
shareholders eligible to vote thereon of the conversion of all of the Company’s issued and
outstanding capital stock to common stock, the Merger, and this Agreement.
7.7 Listing of Shares. Prior to the Effective Date, EZCORP shall file with the NASDAQ
Stock Market such notices, forms and other documents as may be required to cause the EZCORP Shares
to be listed and approved for quotation on the NASDAQ Global Select market as of the Effective
Date.
7.8 Section 16 Matters. Prior to the Effective Date, EZCORP shall use its reasonable
best efforts to cause any acquisitions of EZCORP capital stock resulting from the Merger from each
person who may be subject to the reporting requirements of Section 16 of the Exchange Act with
respect to EZCORP following the Effective Date, to be exempt under Rule 16b-3 promulgated under the
Exchange Act.
7.9 Public Announcements. EZCORP and Merger Sub will provide the Company drafts of,
and solicit the Company’s comments on, any press release or other public statements with regards to
the Merger or this Agreement prior to making the release or public statement.
8 Conditions Precedent to Merger Sub’s and EZCORP’s Obligation to Close.
The obligation of the Merger Sub and EZCORP to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction and fulfillment of each of the following
express conditions precedent prior to and on the Closing Date (any of which may be waived by Merger
Sub, in whole or in part):
8.1 Approval by the Company. The holders of a majority of the outstanding common
stock of the Company shall have voted in favor of the Merger, including all shares of common stock
issuable upon conversion of all other classes of capital stock to common stock.
8.2 Conversion of Capital Stock. Prior to the vote by the Company’s shareholders on
whether to approve the merger, all shares of capital stock or convertible securities of the Company
shall have been converted into shares of common stock of the Company.
8.3 Xxxx-Xxxxx-Xxxxxx. All applicable waiting periods (and any extensions thereof)
under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Merger Sub,
EZCORP and the Company shall have received all authorizations, consents, and approvals of
governments and governmental agencies.
8.4 Representation and Warranties. All the representations and warranties in this
Agreement made by the Company (except those contained in Section 5.2) must be accurate in all
material respects as of the Closing Date as if made on the Closing Date.
8.5 Performance of Covenants and Obligations. The Company shall have performed and
complied with all of its covenants and obligations under this Agreement, including but not limited
to the applicable additional agreements contained in Section 0, which are to be performed or
complied with by it prior to or on the Closing Date.
8.6 Material Adverse Change. From and after the date of this Agreement and until the
Closing Date, the Merger Sub and EZCORP shall have reasonably determined that there has been no
Material Adverse Change.
8.7 Consent. The Company shall have obtained every Consent necessary under any
Contract, Order, License, Law or restriction to which the Company is subject or a party to the
extent failure to obtain any such Consent would have a Material Adverse Effect as a result of the
Closing and consummation of this Agreement.
9 Conditions to the Company’s Obligation to Close.
The obligation of the Company to consummate the transactions contemplated by this Agreement,
including the Tender Offer, shall be subject to the satisfaction and fulfillment, prior to and on
the Closing Date, of the following express conditions precedent (any of which may be waived by the
Company, in whole or in part):
9.1 Approval by the Merger Sub. The holder of the outstanding Class B voting common
stock of EZCORP and a majority of the outstanding common stock of the Merger Sub shall have voted
in favor of the Merger.
9.2 Representations and Warranties. All the representations and warranties in this
Agreement made by the Merger Sub and EZCORP must be accurate in all material respects as of the
Closing Date as if made on the Closing Date.
9.3 Performance of Covenants and Obligations. The Merger Sub and EZCORP shall have
performed and complied with all of its material covenants and obligations under this Agreement,
including but not limited to the additional agreements contained in Section 0, which are to be
performed or complied with by it prior to or on the Closing Date.
9.4 Payment of Purchase Price. The Merger Sub shall have caused the payments to be
made and the EZCORP Shares to be delivered as described in Section 2 hereof.
9.5 Fairness Opinion. The Company shall have received a fairness opinion from a third
party as to this Agreement and the terms hereof.
9.6 Board Approval. The Company’s Board of Directors shall have approved the execution
and delivery of this Agreement and recommended to the Company’s shareholders that the transactions
contemplated herein be approved.
9.7 Shareholder Approval. Holders of a majority of each outstanding series of capital
stock of the Company shall have approved the conversion of such shares into common stock of the
Company prior to the Merger and shall have approved the Merger.
9.8 Xxxx-Xxxxx-Xxxxxx. All applicable waiting periods (and any extensions thereof)
under the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated and the Merger Sub,
EZCORP and the Company shall have received all authorizations, consents, and approvals of
governments and governmental agencies.
9.9 Registration Statement and Related Matters. The Registration Statement shall have
been declared effective by the SEC under the Securities Act, no stop order suspending the
effectiveness of the Registration Statement shall have been issued by the SEC and no proceeding for
that purpose shall have been initiated by the SEC and not concluded or withdrawn, the EZCORP Shares
shall have been approved for listing on the NASDAQ Global Select Market, and EZCORP shall have
provided to the Company a certificate, signed by a duly authorized officer of EZCORP, to the effect
that the foregoing conditions set forth in this Section 9.8 have been satisfied.
10 Termination.
10.1 This Agreement may, by written notice given prior to or at Closing, be terminated:
(a) By either the Merger Sub or the Company if a material breach of any provision of
this Agreement has been committed by the other party and such breach has not been waived or
cured (if such breach is capable of being cured within 15 days after the breaching party’s
receipt of written notice thereof;
(b) (1) by the Merger Sub or EZCORP if any of the conditions in Section 0 have not
been satisfied as of the Closing Date, or if, prior to that time, satisfaction of a
condition is or becomes impossible (unless the failure to satisfy the condition results
primarily from the Merger Sub or EZCORP itself breaching any representation, warranty, or
covenant contained in this Agreement) and Merger Sub or EZCORP has not waived such
condition on or before the Closing Date; or (2) by the Company if any of the conditions in
Section 8.7 have not been satisfied as of the Closing Date, or if, prior to that time,
satisfaction of a condition is or becomes impossible (unless the failure to satisfy the
condition results primarily from the Company breaching any representation, warranty, or
covenant contained in this Agreement) and the Company has not waived such condition on or
before the Closing Date;
(c) By EZCORP if the Company receives from the holders of more than 10% of its issued
and outstanding shares of capital stock valid and enforceable notices of their intent to
demand for payment for their shares pursuant to FBCA Section 1321;
(d) by mutual consent of the Merger Sub, EZCORP and the Company;
(e) by any of the Merger Sub, EZCORP or the Company if the Closing has not occurred
(other than through the failure of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) on or before August 8, 2008; and
(f) by the Company if the conversion of the Company’s issued and outstanding capital
stock to common stock, the Merger or this Agreement shall fail to receive the requisite
votes for approval by the shareholders of the Company at the shareholders’ meeting to be
held pursuant to Section 7.6 hereof.
11 Indemnification.
11.1 Survival of Representations. All covenants and obligations in this Agreement and
the Disclosure Schedule shall survive the Closing for a period of one year. The right to
indemnification, payment of damages or any other remedy based on such representations, warranties,
covenants and obligations will not be affected by any investigation conducted with respect to, or
any Knowledge acquired (or capable of being acquired) at any time, whether before or after the
execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or
inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The
waiver of any condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of damages, or other remedy based on such representations, warranties,
covenants, and obligations.
11.2 Indemnification.
(a) The Company will indemnify and hold harmless the Merger Sub and EZCORP for, and
will pay to the Merger Sub and EZCORP the amount of, any loss liability, claim, damage,
expense or deficiency including, but not limited to, reasonable attorneys’ fees and other
costs and expenses from or in connection with:
(1) Any material breach of any representation or warranty made by the Company
in this Agreement, the Disclosure Schedule and any other certificate or document
delivered by the Company pursuant to this Agreement; or
(2) Any material breach by the Company of any covenant or obligation of the
Company in this Agreement.
(b) The Merger Sub and EZCORP will indemnify and hold harmless the Company for, and
will pay to the Company the amount of, any loss, liability, claim, damage, expense or
deficiency including, but not limited to, reasonable attorneys’ fees and other costs and
expenses from or in connection with:
(1) Any material breach of any representation or warranty made by the Merger
Sub or EZCORP in this Agreement and any other certificate or document delivered by
Merger Sub or EZCORP pursuant to the Agreement; or
(2) Any material breach by the Merger Sub or EZCORP of any covenant or
obligation of the Merger Sub or EZCORP in this Agreement.
12 Miscellaneous.
12.1 Further Assurances. Each party hereto from time to time hereafter, and upon
request, shall execute, acknowledge and deliver such other instruments as reasonably may be
required to more effectively carry out the terms and conditions of this Agreement.
12.2 Payment of A-2 Dividend. The parties acknowledge and understand that this
Agreement contemplates payment of the accrued unpaid dividend on the A-2 shares in cash at the time
of conversion of said shares to common, as provided in the Amended and Restated Articles of
Incorporation of the Company.
12.3 Benefit and Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their heirs, successors, assignees, and beneficiaries in interest.
The Merger Sub may assign this Agreement only to affiliates that are 100% owned by EZCORP, Inc.,
EZPAWN Florida, Inc., or another 100% owned subsidiary of EZCORP, Inc.
12.4 Governing Law. This Agreement shall be governed by and construed in accordance
with the internal Laws of the State of Florida (regardless of its conflict of laws principles), and
without reference to any rules of construction regarding the party responsible for the drafting
hereof.
12.5 Expenses. Except as otherwise herein provided, all expenses and costs incurred in
connection with this Agreement or the transactions herein provided for shall be paid by the party
incurring such expenses and costs.
12.6 Notices. All notices, demands, and communications provided for herein or made
hereunder shall be given in writing and shall be deemed given to a party at the earlier of (a) when
actually delivered to such party; (b) when facsimile transmitted to such party to the facsimile
number indicated for such party below (or to such other facsimile number for a party as such party
may have substituted by notice pursuant to this Section); or (c) when mailed to such party by
registered or certified U.S. Mail (return receipt requested) or sent by overnight courier,
confirmed by receipt, and addressed to such party at the address designated below for such party
(or to such other address for such party as such party may have substituted by notice pursuant to
this Section):
| If to the Merger Sub: | Value Merger Sub, Inc. | |||
| Attention: Xxxxxx Xxxxxx, General Counsel | ||||
| 0000 Xxxxxxx Xxxxxxx | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| If to EZCORP: | EZCORP, Inc. | |||
| Attention: Xxxxxx Xxxxxx, General Counsel | ||||
| 0000 Xxxxxxx Xxxxxxx | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| With a copy to: | Xxx Xxxxxx, Esq. | |||
| Xxxxxxxxxxx & Price, LLP | ||||
| 000 Xxxxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| If to the Company: | Value Financial Services, Inc. | |||
| 0000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxx. | ||||
| Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| With a copy to: | Xxxxxxx Xxxxxxx, Esq. | |||
| Xxxxxxxxx Traurig, P.A. | ||||
| 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000 | ||||
| Xxxx Xxxxx, XX 00000 | ||||
| Fax: (000) 000-0000 |
12.7 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument, provided that all such counterparts, in the aggregate, shall contain
the signatures of all parties hereto.
12.8 Headings. All Section headings herein are inserted for convenience only and shall
not modify or affect the construction or interpretation of any provision of this Agreement.
12.9 Amendment, Modification and Waiver. This Agreement may not be modified, amended
or supplemented except by mutual written agreement of the Merger Sub and the Company. Both the
Merger Sub and the Company may waive in writing any term or condition contained in this Agreement
and intended to be for its benefit; provided, however, that no waiver by either party, whether by
conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or
continuing waiver of any such term or condition.
12.10 Entire Agreement. This Agreement, any Exhibit attached hereto, and the
Disclosure Schedule represent the entire agreement of the parties with respect to the subject
matter hereof and supersede and replace any prior understandings and agreements with respect to the
subject matter hereof and no provision or document of any kind shall be included in or form a part
of such agreement unless signed and delivered to the other party by the party to be charged.
12.11 Third Party Beneficiaries. No third parties are intended to benefit from this
Agreement, and no third party beneficiary rights shall be implied from anything contained in this
Agreement.
[signatures on following page]
IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to be executed as of
the date and year first above written.
| EZCORP, Inc. |
||||
| By: | ||||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
| Value Merger Sub, Inc. |
||||
| By: | ||||
| Xxxxxx Xxxxxx | ||||
| Vice President | ||||
| Value Financial Services, Inc. |
||||
| By: | ||||
| Xxxx Xxxxxxxx, President and | ||||
| Chief Executive Officer | ||||
