TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT dated as of June 30, 1997 by and among
Xxxxxx X. Xxxxxxxx, Xx., a resident of the Commonwealth of Pennsylvania
("Employee"), DFG Holdings, Inc., a Delaware corporation ("Holdings"), and
Dollar Financial Group, Inc., a New York corporation ("DFGI"; together with
Holdings, the "Employer").
WHEREAS, Employer and Employee are parties to a certain employment
agreement dated as of August 8, 1996 (the "Employment Agreement");
WHEREAS, Employee desires to terminate his employment with Employer;
and
WHEREAS, Employee and Employer desire to set forth the terms and
conditions agreed by the parties in connection with such termination.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, and intending to be legally
bound hereby, the parties hereby agree as follows:
1. Termination of Employment. Employee's employment with Employer
shall terminate effective June 30, 1997 (the "Termination Date"). The parties'
respective obligations under the Employment Agreement (other than as set forth
herein) shall terminate as of such date; provided, that the provisions of
Section 10, Section 11, Section 13, Section 14, Section 15 and Section 16 of the
Employment Agreement shall remain in full force and effect pursuant to their
respective terms. Employer shall continue to pay Employee's base salary as
currently in effect for all work through and including June 30, 1997 in
accordance with the current payroll practices of Employer.
Employee hereby resigns all of his positions as a director
and/or officer of Holdings, DFGI and each other entity listed on Schedule 1
attached hereto, effective June 30, 1997.
2. Incentive Compensation. Notwithstanding the terms of any provision
set forth in the Employment Agreement, Employer's sole obligation to Employee
regarding the payment of incentive compensation pursuant to Section 5 of the
Employment Agreement shall be to pay to Employee an amount of $96,000 on or
prior to the date sixty (60) days from the Termination Date.
3. Consulting Agreement. Employer hereby agrees to retain Employee,
and Employee hereby agrees to serve, as a consultant to Employer to work on
projects specified by senior management of Employer. Employee agrees to provide
consulting services for not less than one full work day per week for a period of
six (6) months after the Termination Date. In
consideration of such services, Employer agrees to pay Employee an amount of
$5,000 per month (subject to withholding of applicable federal, state and local
taxes and FICA and FUTA contributions), payable on the last day of each month,
and to reimburse Employee for all reasonable, documented, out-of-pocket expenses
incurred by Employee in the course of performing such consulting services.
4. Options. Notwithstanding the provisions of Section 6 of the
Employment Agreement, Employer and Employee hereby agree as follows:
(a) Holdings hereby acknowledges and agrees that as of June
30, 1997, Employee holds Options (as defined in the Employment Agreement) to
purchase 875 shares of common stock, without par value ("Common Stock"), of
Holdings and all such Options are fully vested and exercisable. Holdings hereby
further agrees and acknowledges that, notwithstanding anything contained in
Section 6.D. of the Employment Agreement, the number of shares of Common Stock
subject to Options has not been and shall not be reduced by reason of such
Section 6.D. Employer consents to, and hereby waives any restrictions contained
in the Employment Agreement relating to, the sale of all of such Options to
General Electric Capital Corporation, a New York corporation and a shareholder
of Holdings ("GE Capital") for an aggregate consideration of $525,000 pursuant
to the Stock Purchase Agreement dated as of June 30, 1997 between GE Capital,
Employee, Xxxxx Xxxxxxxx and Holdings (the "Stock Purchase Agreement"). Holdings
hereby acknowledges the intent of GE Capital to exercise the Options immediately
upon such purchase.
(b) Employee and Holdings hereby acknowledge and agree that,
as of June 30, 1997, the Additional Options (as defined in the Employment
Agreement) shall be canceled and void and of no further force or effect.
(c) Employee and Holdings hereby agree that as of June 30,
1997, with respect to the Supplemental Options (as defined in the Employment
Agreement), all Supplemental Options, other than Supplemental Options to acquire
150 shares of Common Stock, shall be canceled and void and have no further force
or effect. The Supplemental Options to purchase 150 shares of Common Stock (the
"Retained Supplemental Options") which shall remain outstanding, shall be
exercisable in the event that Xxxxx, Xxxx & Xxxxx has realized an internal rate
of return of thirty-five percent (35%) or greater in its equity investment in
Employer made concurrent with the execution of the Employment Agreement. The
Retained Supplemental Options shall have a term of ten (10) years from August 8,
1996. All shares of Common Stock issuable upon the exercise of the Retained
Supplemental Options shall be subject to the terms of the Amended and Restated
Shareholders Agreement dated as of August 8, 1996, by and among Holdings, DFGI,
Employee, GE Capital, and the other shareholders of Holdings and other parties
signatory thereto, as amended (the "Shareholders Agreement"). Employee further
acknowledges and agrees that, after the date hereof, Employee shall no longer be
deemed to be a "Management Shareholder" under the Shareholders Agreement. The
Retained Supplemental Options shall remain personal to the Employee and are
non-transferable, except that upon the Employee's death, the Retained
Supplemental Options shall be transferable to his personal representative.
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Employer shall not be obligated to make an Option Loan (as defined in the
Employment Agreement) with respect to the exercise of the Retained Supplemental
Options. The provisions of Paragraph 6.F. of the Employment Agreement shall
apply to the Retained Supplemental Options.
5. General Release.
(a) In consideration for Employer's payments set forth above
in Paragraphs 2 and 3 and Employer's agreements in Paragraph 4, and for GE
Capital executing and performing the transactions contemplated by the Stock
Purchase Agreement, Employee agrees, intending to be legally bound, to release
and forever discharge Holdings, DFGI and each of their past, present and future
officers, directors, attorneys, employees, partners, shareholders, owners and
agents, and their respective successors and assigns (collectively, "Employer
Releasees"), jointly and severally, from any and all actions, complaints,
charges, causes of action, lawsuits or claims of any kind (collectively
"Claims"), known or unknown, which Employee, his heirs, agents, successors or
assigns ever had, now have or hereafter may have, against Employer Releasees
arising out of any matter, occurrence or event existing or occurring prior to
the execution hereof, including, without limitation: any claims relating to or
arising out of Employee's employment with and/or the termination of employment
with Employer; any claims for unpaid or withheld wages, severance, benefits,
bonuses, commissions and/or other compensation of any kind; any claims for
attorneys' fees, costs or expenses; any claims arising under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"); any claims of
discrimination and/or harassment based on age, sex, race, religion, color,
creed, disability, handicap, citizenship, national origin, ancestry, sexual
preference or orientation, or any other factor prohibited by Federal, state or
local law (including, but not limited to, Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act, and the Commonwealth of
Pennsylvania's Human Relations Act); any claims for reemployment or
reinstatement; any claims for retaliation and/or any whistleblower claims;
and/or any other statutory or common law claims, now existing or hereinafter
recognized, including, but not limited to, breach of contract, libel, slander,
fraud, infliction of emotional distress, wrongful discharge, breach of covenant
of good faith and fair dealing, promissory estoppel, equitable estoppel and
misrepresentation. The general release granted by Employee pursuant to this
Paragraph 5(a) shall be referred to herein as the "General Release."
(b) Holdings and DFGI hereby release Employee, his heirs and
assigns (collectively, "Employee Releasees") from any and all Claims, known or
unknown, arising out of any matter, occurrence or event existing or occurring
prior to the execution hereof, in connection with Employee's service as a
director, officer or employee of Holdings, DFGI or any of their respective
subsidiaries, other than claims arising from the gross negligence, acts in bad
faith or willful misconduct of Employee. The release granted by Holdings and
DFGI pursuant to this paragraph 5(b) shall be referred to herein as the "Limited
Release."
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6. Reservation of Certain Rights by Employee; Enforceability of
Agreement; Indemnity.
(a) Notwithstanding the provisions of the General Release in
Paragraph 5(a), Employee reserves all rights as an officer, director and
employee of Holdings, DFGI and their respective subsidiaries in connection with
indemnification and the advancement of fees pursuant to Section 145 of the
Delaware General Corporation Law, any other applicable state statute regarding
indemnification and the advancement of fees, applicable by-laws and any
indemnification agreements or provisions.
(b) Neither the General Release in Paragraph 5(a) above nor
the Limited Release in Paragraph 5(b) above applies to any claims to enforce
this Agreement or the Stock Purchase Agreement or to any claims arising out of
any matter, occurrence or event occurring after the execution of this Agreement.
It is expressly agreed and understood that the General Release and the Limited
Release apply to claims relating to or arising out of the voluntary termination
of Employee's employment with Employer and other matters addressed herein.
(c) In the event a party breaches this Agreement by bringing a
Claim released pursuant to Paragraph 5 above, the breaching party shall
indemnify and hold harmless Employer Releasees or Employee Releasees, as
applicable, for any losses suffered or incurred by Employer Releasees or
Employee Releasees, as applicable, in connection with the bringing of such
claim, including any attorneys' fees, costs or expenses which may be incurred in
defending the released Claim. Notwithstanding the foregoing, the General Release
set forth in Paragraph 5(a) and the Limited Release set forth in Paragraph 5(b)
above shall remain in full force and effect.
7. Termination Voluntary. Employer hereby acknowledges that Employee
is voluntarily terminating his employment with Employer. Employee acknowledges
and agrees that any payments by Employer under Paragraphs 2 and 3 and the
agreement by Employer under Paragraph 4 above are not required by any policy,
plan or prior agreement and constitute adequate consideration to support
Employee's General Release in Paragraph 5 above.
8. Benefits.
(a) Employee's coverage in the Employer's group health benefit
plans shall terminate as of the Termination Date in accordance with the terms of
those plans. However, Employee will be eligible to continue to participate in
such plans at Employee's expense pursuant to COBRA, subject to COBRA's
eligibility requirements and other terms, conditions, restrictions and
exclusions. Employee will receive additional information about his COBRA rights
from Employer within a reasonable period of time after the date hereof. All
other insurance benefits coverage will terminate effective on the Termination
Date, including life and long-term disability coverage.
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(b) Employee will not forfeit any benefits vested prior to the
termination of his employment under Employer's 401(k) plan, subject to the
terms, conditions and restrictions of such plan. Employee will not accrue any
additional benefits under the 401(k) plan after the Termination Date.
9. Confidential Information.
(a) Employee hereby acknowledges and agrees that Employee is
prohibited from using or disclosing confidential information ("Confidential
Information") which Employee acquired in the course of his employment with
Employer. Confidential Information shall not include any information which is
generally known by or readily accessible to the public (other than by reason of
a breach by Employee of his obligations hereunder or under any other
confidentiality agreement between Employee and Employer). Confidential
Information shall include, but not be limited to: information about the
business, marketing, accounting or legal practices, plans or strategies of
Employer; information about clients or customers of Employer, such as their
identities or other account information; "inside information" about Employer,
such as advance information on acquisitions, earnings, dividends, securities
offerings, major contract awards, important discoveries or inventions, voluntary
calling of debt issues and imminent litigation or governmental proceedings;
information concerning the earnings, methods for doing business or research and
development projects or plans of Employer, and/or the names and/or addresses of
the employees, suppliers, clients or customers or potential clients or customers
of Employer, and/or information regarding the human resources practices,
procedures or policies of Employer, including with respect to employee
compensation and benefits.
(b) In the event Employee receives a request or demand,
orally, in writing, electronically or otherwise, for the disclosure or
production of any information which Employee acquired in the course of his
employment, Employee must notify immediately, in writing, via certified mail,
Employer, c/o Dollar Financial Group, Inc., 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: President. If the request or demand is in
conjunction with judicial, administrative, arbitration or other adversarial
proceedings, copies of all correspondence regarding the request or demand shall
be included with the information sent to Employer. Any and all documents
relating to the request or demand shall be included with the notification.
Employee shall wait a minimum of ten (10) days after sending the letter before
making a disclosure or production to give Employer time to determine whether the
disclosure or production involves Confidential Information, in which event
Employer may seek to prohibit and/or restrict the production and/or disclosure
and/or to obtain a protective order with regard thereto. Employee may only
disclose Confidential Information after waiting the ten (10) days referred to in
the prior sentence if the request or demand for such information is in
connection with judicial, administrative, arbitration and all other adversarial
proceedings and then only to the extent that such disclosure is required by
court order.
10. Confidential Nature of Agreement. Employee hereby agrees that, at
all times, the existence, terms and conditions of this Agreement will be kept
secret and confidential and will not be disclosed voluntarily to any third party
(other than to investors or potential
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investors), except to the extent required by law, to enforce the Agreement or to
obtain confidential legal, tax or financial advice with respect thereto.
11. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
for the conflict of law principles thereof.
12. No Admission. Nothing in this Agreement shall be construed as an
admission or concession of liability or wrongdoing by Employer or any other
Employer Releasee as defined above. This Agreement is being executed and
delivered by the parties for the sole purpose of settling amicably obligations
under the Employment Agreement and any and all possible disputes between the
parties.
13. Binding Effect; Partial Invalidity. If any provision of this
Agreement is deemed unlawful or unenforceable by a court of competent
jurisdiction, the remaining provisions shall continue in full force and effect.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any and all prior agreements, written or
oral, expressed or implied, between Employee and any Employer Releasee.
15. Acknowledgment of Employee. Employee hereby agrees and represents
that:
(a) Employee has read carefully the terms of this Agreement,
including the General Release;
(b) Employee has had an opportunity to and has reviewed this
Agreement, including the General Release, with Employee's attorney, Xxxxxxx X.
Xxxxxx, Esq., Xxxxxx & Xxxxxx, Xxxxxxxxxxxx, XX 00000;
(c) Employee understands the meaning and effect of the terms
of this Agreement, including the General Release;
(d) Employee received as much time as he needed to determine
whether he wished to enter into this Agreement, including the General Release;
(e) The entry into and execution of this Agreement, including
the General Release, is of Employee's own free and voluntary act without
compulsion of any kind;
(f) No promise or inducement not expressed herein has been
made to Employee; and
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(g) Employee has adequate information to make a knowing and
voluntary waiver.
16. Third Party Beneficiaries. Nothing is this Agreement is intended
to or shall create any third-party beneficiary rights in any person or entity;
provided, that GE Capital shall be an express third-party beneficiary of
Employee's agreements, acknowledgments, consents and waivers contained in
Section 4(a) hereof and each party to the Shareholders Agreement shall be an
express third-party beneficiary of Employee's agreements, acknowledgements
contained in the fourth and fifth sentences of Section 4(c) hereof.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement as of the date first above written.
DFG HOLDINGS, INC.
By:
-------------------------------
Xxxxxxx Xxxxx
President
DOLLAR FINANCIAL GROUP, INC.
By:
-------------------------------
Xxxxxxx Xxxxx
President
EMPLOYEE
-------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
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Schedule 1
----------
Albuquerque Investments, Inc.
Any Kind Check Cashing Centers, Inc.
Check Mart of Louisiana, Inc.
Check Mart of New Mexico, Inc.
Check Mart of Pennsylvania, Inc.
Check Mart of Texas, Inc.
Check Mart of Utah, Inc.
Check Mart of Washington, Inc.
Check Mart of Washington, D.C., Inc.
Check Mart of Wisconsin, Inc.
DFG Warehousing Co., Inc.
Dollar Financial Insurance Corp.
Dollar Insurance Administration Corp.
Financial Exchange Company of Michigan, Inc.
Financial Exchange Company of Ohio, Inc.
Financial Exchange Company of Pennsylvania, Inc.
Financial Exchange Company of Pittsburgh, Inc.
Financial Exchange Company of Virginia, Inc.
L.M.S. Development Corporation
Monetary Management Corp.
Monetary Management Corporation of Pennsylvania, Inc.
Monetary Management of California, Inc.
Monetary Management of Maryland, Inc.
Monetary Management of New York, Inc.
Pacific Ring Enterprises, Inc.
U.S. Check Exchange Limited Partnership
-8-
LIMITED WAIVER
This Limited Waiver is made effective as of June 30, 1997, by and among
DFG Holdings, Inc., a Delaware corporation ("Holdings"), General Electric
Capital Corporation, a New York corporation ("GE Capital"), WPG Corporate
Development Associates IV, L.P., a Delaware limited partnership ("CDA IV
Domestic"), WPG Corporate Development Associates IV (Overseas), L.P., a Cayman
Islands exempt limited partnership ("CDA IV Overseas"; with CDA IV Domestic, the
"CDA Funds"), Xxxxxxx Xxxxx ("Xxxxx"), Pegasus Partners, L.P., a Delaware
limited liability company ("Pegasus I"), PAG Dollar Investors LLC, a Delaware
limited liability company ("Pegasus II" and, together with Pegasus I,
"Pegasus"), Xxxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx") (collectively, the
"Shareholders").
WHEREAS, Holdings, Dollar Financial Group, Inc., a New York corporation
("DFGI"), and Xxxxxxxx are parties to a certain employment agreement dated as of
August 8, 1996 (the "Employment Agreement");
WHEREAS, the Shareholders, other holders of the shares of the Common
Stock, without par value, of Holdings ("Common Stock"), and holders of warrants
to purchase shares of Common Stock are parties to that certain Amended and
Restated Shareholders Agreement, dated as of August 8, 1996, as amended (the
"Shareholders Agreement");
WHEREAS, Xxxxxxxx desires to terminate his employment with Holdings and
DFGI; and
WHEREAS, in connection with such termination, the Shareholders desire to
resolve certain issues with respect to the purchase of 39.58 shares of Common
Stock (the "Shares") and 875 Options (as defined in the Employment Agreement)
from Xxxxxxxx by GE Capital.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises of the parties set forth herein and for good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Waiver. The Shareholders hereby waive any right they may have
pursuant to any provision of Article II, Article III or Section 5.13 and 5.14 of
the Shareholders Agreement that has not been complied with in connection with,
and agree not to enforce any restriction connected in any such provision that
has not been complied with in connection with the purchase by GE Capital of the
Shares and the Options from Xxxxxxxx pursuant to the terms and conditions of the
Stock Purchase Agreement dated as of June 30, 1997 by and between GE Capital,
Xxxxxxxx, Xxxxx Xxxxxxxx and Holdings, and the exercise of such Options by GE
Capital pursuant to such Stock Purchase Agreement; provided, that the Shares and
the shares of Common Stock issuable to GE Capital upon the exercise of such
Options shall be subject in all respects to the terms and provisions of the
Shareholders Agreement.
2. Exercise of Repurchase Right. The purchase of the Shares by GE
Capital shall be deemed to be pursuant to the exercise of a Repurchase Right by
GE Capital in accordance with Section 3.2(b) of the Shareholders Agreement.
3. Representation and Warranty by Investors. Each of GE Capital, CDA
IV Domestic, CDA IV Overseas, Pegasus I and Pegasus II hereby severally
represents and warrants that, as of the date hereof, none of such parties has
transferred any shares of Common Stock since August 8, 1996, and that, to the
best knowledge of each such party, there are no other "Investors," as such term
is defined in the Shareholders Agreement, other than such parties.
4. Controlling Law. This Limited Waiver and all questions relating to
this validity, interpretation, performance and enforcement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
contracts made in that state.
5. Execution in Counterparts. This Limited Waiver may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
IN WITNESS WHEREOF, the parties have executed and delivered this Limited
Waiver as of the day and year first above written.
DFG HOLDINGS, INC.
By:
--------------------------------
Xxxxxxx Xxxxx
President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
(continued next page)
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WPG CORPORATE DEVELOPMENT ASSOCIATES IV, L.P.
By:
--------------------------------
Name:
Title:
WPG CORPORATE DEVELOPMENT ASSOCIATES IV
(OVERSEAS), L.P.
By:
--------------------------------
Name:
Title:
------------------------------------
Xxxxxxx Xxxxx
PEGASUS PARTNERS, L.P.
By:
--------------------------------
Name:
Title:
PAG DOLLAR INVESTORS LLC
By:
--------------------------------
Name:
Title:
------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made as of June 30,
1997 by and among General Electric Capital Corporation, a New York corporation
("Buyer"), Xxxxxx X. Xxxxxxxx, Xx. ("Seller"), Seller's spouse, Xxxxx Xxxxxxxx,
and DFG Holdings, Inc., a Delaware corporation ("Holdings").
WITNESSETH:
WHEREAS, Seller is presently the record and beneficial owner of
thirty-nine and fifty-eight hundredths (39.58) shares (the "Shares") of common
stock, without par value ("Common Stock"), of Holdings and Seller also holds
options to purchase eight hundred seventy-five (875) shares of Common Stock (the
"Options");
WHEREAS, Seller desires to sell to Buyer the Shares and the Options
subject to the terms and conditions set forth herein, and Buyer desires to buy
from Seller the Shares and the Options subject to the terms and conditions set
forth herein;
WHEREAS, the transfer of the Shares by Seller is subject to certain
restrictions pursuant to the terms of an Amended and Restated Shareholders
Agreement dated as of August 8, 1996 among Holdings, Dollar Financial Group,
Inc. ("DFGI"), Seller, Buyer and all other shareholders of record of Holdings,
and other parties signatory thereto, as amended (the "Shareholders Agreement");
and
WHEREAS, the transfer of the Options by Seller is subject to certain
restrictions pursuant to the terms of the employment agreement among DFGI,
Holdings and Seller, dated as of August 8, 1996 (the "Employment Agreement"),
which restrictions are being waived by DFGI and Holdings pursuant to a
Termination Agreement dated as of June 30, 1997 by and among Seller, Holdings
and DFGI.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, receipt of
which is hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1. Purchase and Sale of the Shares and the Options; Exercise of Options.
A. Subject to the terms and conditions of this Agreement, Seller
hereby sells, assigns, transfers and sets over unto Buyer the Shares and the
Options free and clear of all liens, security interests, pledges, restrictions
on transfer, shareholders' agreements or any other encumbrances, other than the
Shareholders Agreement, and Buyer hereby purchases from Seller the Shares and
the Options. The effective date of such purchases and sales shall be June 30,
1997. Seller shall sell and Buyer shall purchase the Shares for the aggregate
Share Purchase Price, as defined in Section 2 hereof, and Seller shall sell and
Buyer shall purchase the Options for the aggregate Option Purchase Price, as
defined in Section 2 hereof. The Share Purchase Price and the Option Purchase
Price shall be paid in accordance with the terms hereof.
B. Buyer hereby exercises the Options. In connection with such
exercise of the Options, Holdings hereby issues and sells to Buyer free and
clear of all liens, security interest, pledges or transfers, shareholders'
agreements or any other encumbrances, other than the Shareholders Agreement, and
Buyer hereby purchases from Holdings, a total of 875 shares of Common Stock (the
"Option Shares") for a purchase price of $875,000 in the aggregate (the "Option
Shares Purchase Price"). The Option Shares Purchase Price shall be paid in
accordance with the terms hereof.
2. Purchase Price for the Shares and the Options.
A. Seller and Buyer agree that the purchase price for the Shares
shall be One Thousand Six Hundred Dollars ($1,600.00) per Share for an aggregate
purchase price of Sixty- Three Thousand Three Hundred Twenty-Eight Dollars
($63,328.00) (the "Share Purchase Price").
B. Seller and Buyer agree that the purchase price for the Options
shall be Six Hundred Dollars ($600.00) per Option for an aggregate purchase
price of Five Hundred Twenty- Five Thousand Dollars ($525,000.00) (the "Option
Purchase Price").
3. Payment of the Share Purchase Price, the Option Purchase Price and the
Option Shares Purchase Price.
A. On June 30, 1997, or such other date as agreed by Buyer and
Seller, the aggregate amount of the Share Purchase Price and the Option Purchase
Price, an amount equal to Five Hundred Eighty-Eight Thousand Three Hundred
Twenty-Eight Dollars ($588,328.00), shall be paid by Buyer as follows: Five
Hundred Sixty-Six Thousand Fifteen Dollars and Fifty Cents ($566,015.50) shall
be paid directly to Seller in cash by delivery of a certified or bank cashier's
check, payable to the order of Seller or, at Seller's option, by wire transfer
of immediately available funds into an account designated by Seller and
Twenty-Two Thousand Three Hundred Twelve Dollars and Fifty Cents ($22,312.50)
shall be paid to Holdings in cash by delivery of a certified or bank cashier's
check, payable to the order of Holdings or, at the option of Holdings, by wire
transfer of immediately available funds into an account designated by Holdings
for use by Holdings to satisfy its withholding obligation under the Internal
Revenue Code of 1986, as amended, in connection with the sale of the Options
pursuant to the terms of this Agreement.
B. Seller and Buyer hereby acknowledge and agree that the Share
Purchase Price and the Option Purchase Price constitute full and fair
consideration for the Shares and the Options, and upon delivery of the
consideration for the Shares and the Options as provided in
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this Section, Buyer shall have delivered, and Seller shall have received, full
and fair consideration for the Shares and the Options.
C. On June 30, 1997, or such other date as agreed by Buyer and
Holdings, the aggregate amount of the Option Shares Purchase Price, an amount
equal to Eight Hundred Seventy-Five Thousand Dollars ($875,000) shall be paid by
Buyer to Holdings in cash by delivery of a certified or bank cashier's check
payable to the order of Holdings, or at the option of Holdings, by wire transfer
of immediately available funds to an account designated by Holdings.
4. Dividends and Arrearages. Seller hereby acknowledges and agrees that
Holdings is not indebted to Seller on account of any dividends or other
distributions, on or with respect to the Shares, which have been declared by
Holdings' Board of Directors and which remain unpaid on the date hereof.
5. Representations and Warranties of Seller. As to the purchase and sale of
the Shares and the Options hereunder, Seller hereby represents and warrants to
Buyer that:
A. Seller is the record and beneficial owner of the Shares and the
Options (which term, for purposes of this Section 5, shall include any shares of
Common Stock issuable upon the exercise of Options). The Shares and the Options
are being sold, assigned, transferred and set over to Buyer free and clear of
all liens, encumbrances, pledges, restrictions on transfer, claims for equitable
distribution and any other rights of others, of any nature whatsoever (other
than those in connection with the restrictions set forth in the Shareholders
Agreement), and there is no outstanding agreement to sell the Shares or the
Options to any person or entity or any right or option on the part of any other
person or entity to purchase or require the sale of the Shares or the Options or
any portion thereof, except as contemplated hereby and in the Shareholders
Agreement and the Employment Agreement.
B. Seller has not at any time made or agreed to vote in respect of,
or make any transfer of the Shares or the Options or any portion of the Shares
or the Options other than in compliance with the terms of the Shareholders
Agreement and the Employment Agreement or as contemplated hereby.
C. This Agreement and each of Seller's Ancillary Documents, which
term shall mean, for the purposes of this Agreement, each document, instrument
and agreement executed by Seller in connection with this Agreement and all
transactions contemplated herein or therein by Seller, are the legal, valid and
binding obligation of Seller, each enforceable in accordance with its terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally. The enforceability of Seller's
obligations hereunder and thereunder is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity).
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6. Representations, Warranties and Acknowledgments of Buyer. As to each
purchase and sale of the Shares and the Options hereunder, Buyer hereby
represents and warrants to Seller as follows:
A. Buyer is a corporation, duly organized, validly existing and in
good standing under the laws of the state of its incorporation.
B. Buyer has the requisite corporate power and authority to execute
and deliver this Agreement and to repurchase the Shares and the Options. The
execution, delivery and performance of this Agreement and each of Buyer's
Ancillary Documents, which term shall mean, for the purposes of this Agreement,
each document, instrument and agreement executed by Buyer in connection with
this Agreement and all transactions contemplated herein or therein by Buyer,
will not, with or without the giving of notice or the passage of time, or both,
conflict with, result in a default under, give rise to a right to accelerate or
loss of rights under, or result in the creation of any encumbrance pursuant to,
or require the consent of any third party that has not been obtained or
governmental authority pursuant to (a) the Certificate of Incorporation or
By-laws of Buyer, in each case as last amended, or (b) any franchise, mortgage,
indenture or deed of trust or any license, lease or other agreement (other than
in connection with the restrictions set forth in the Shareholders Agreement and
the Employment Agreement), or any law, rule, regulation, order, judgment or
decree to which Buyer is a party or by which Buyer (or any of Buyer's assets,
properties, operations or businesses) may be bound, subject to or affected.
C. This Agreement and each of Buyer's Ancillary Documents are the
legal, valid and binding obligation of Buyer, each enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, moratorium or similar
laws affecting the enforcement of creditors' rights generally. The
enforceability of Buyer's obligations hereunder and thereunder is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
D. Buyer hereby acknowledges and agrees that the Option Shares shall
be subject to the terms and provisions of the Shareholders Agreement. Buyer
hereby represents and warrants to Holdings that it is acquiring the Option
Shares for its own account, for investment purposes only and not with a view to
the resale or distribution (as such term is used in Section 2(11) of the
Securities Act of 1933, as amended (the "Securities Act")) thereof and that it
is an "accredited investor" within the meaning of Rule 501(a) of Regulation D
promulgated under the Securities Act. Buyer acknowledges that the Option Shares
have not been registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act or an exemption from such
registrations is available, and that the certificate evidencing the Option
Shares shall be legended to such effect and as provided in the Shareholders
Agreement.
7. Representations and Warranties of Holdings. Holdings hereby represents
and warrants to Buyer as follows:
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A. Holdings is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation.
B. Holdings has the requisite corporate power and authority to
execute and deliver this Agreement and Holdings' Ancillary Documents, which
herein shall mean, for purposes of this Agreement, each document, instrument and
agreement executed by Holdings in connection with this Agreement or contemplated
by or referred to in this Agreement, and to perform its obligations hereunder
and thereunder. The execution and delivery of this Agreement and Holdings'
Ancillary Documents, and the performance by Holdings of its obligations
hereunder and thereunder, have been duly authorized by all necessary corporate
action on the part of Holdings. The execution and delivery by Holdings of this
Agreement and Holdings' Ancillary Documents, and the performance by Holdings of
its obligations hereunder and thereunder, will not, with or without the giving
of notice or the passage of time, or both, conflict with, result in a default
under, give rise to a right to accelerate or loss of rights under, or result in
the creation of any encumbrance pursuant to, or require the consent of any third
party or governmental authority pursuant to, (a) the Certificates of
Incorporation or By-laws of Holdings or any of its subsidiaries, in each case as
last amended, or (b) any franchise, mortgage, indenture or deed of trust or any
license, lease or other agreement, or any law, rule, regulation, order, judgment
or decree to which Holdings or any of its subsidiaries is a party or by which
Holdings or its subsidiaries (or any of their respective assets, properties or
business) may be bound, subject or as affected. The Option Shares, when issued
pursuant hereto, will be validly issued and outstanding, fully paid and
non-assessable.
C. This Agreement and each of Holdings' Ancillary Documents
constitute the legal valid and binding obligation of Holdings, each enforceable
in accordance with its terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance, moratorium
or similar laws affecting the enforcement or creditor's rights generally. The
enforceability of Holdings' obligations hereunder and thereunder is subject to
general principles or equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
8. Survival. The representations and warranties set forth in this Agreement
shall survive the transfer of the Shares and the Options by Seller to Buyer
hereunder until a date that is seven (7) years from the date hereof.
9. Delivery; Endorsement of Certificate.
A. In consideration of the Share Purchase Price, Seller hereby
sells, assigns and transfers to Buyer the Shares, and in consideration of the
Option Purchase Price, Seller hereby sells, assigns and transfers to Buyer the
Options. The Shares are represented by a stock certificate issued by Holdings to
Seller (the "Certificate"). The Options are represented by the Employment
Agreement. Seller has contemporaneously with the execution hereof delivered the
Certificate to Holdings, on behalf of itself and Buyer, with instruction to
transfer the Shares and the Options to Buyer.
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B. Seller hereby appoints the President of Holdings as his agent and
attorney-in-fact, with full power of substitution, to effect the transfer of the
Shares and the Options on the books and records of Holdings in accordance with
the terms set forth herein, effective June 30, 1997.
C. Seller, Buyer and Holdings acknowledge and agree that
notwithstanding Seller's failure to deliver to Buyer the Certificate and such
assignment on June 30, 1997, the Shares and the Options shall be deemed to have
been delivered and effectively transferred to Buyer, effective June 30, 1997.
D. On the date hereof, Holdings is delivering to Buyer certificates
representing the Option Shares, registered in the name of Buyer.
10. Covenant of Xxxxx Xxxxxxxx. Xxxxx Xxxxxxxx agrees that any ownership
interest that she has or may have in the Shares and the Options are being
transferred by Seller to Buyer pursuant to the terms hereof, shall be subject to
the terms and conditions of this Agreement and that she hereby knowingly and
intentionally grants any consent, waiver or release that may be necessary to
allow the transfer of the Shares and the Options in accordance with the terms of
this Agreement.
11. Notices. All notices, requests, waivers and other communications made to
a party hereto pursuant to the terms of this Agreement or contemplated by the
terms of this Agreement shall be deemed to have been given when given in writing
and hand-delivered, sent by prepaid air freight, overnight delivery, sent by
facsimile transmission with confirmation of transmission or by telegram or shall
be deemed to have been given two (2) days after being sent by registered or
certified mail, return receipt requested, postage prepaid, to the address of the
party that is set forth below or to such other address that the party may
designate by notice to the other parties which is given in accordance with the
terms of this Section:
To Seller or Xxxxxx X. Xxxxxxxx, Xx.
Xxxxx Xxxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
To Buyer: General Electric Capital Corporation
c/o GE Capital Equity Capital Group
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Vice President
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To Holdings: DFG Holdings, Inc.
c/o Dollar Financial Group, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: President
12. Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made in that State.
13. Entire Agreement; Amendment.
A. This Agreement constitutes the entire agreement and understanding
of the parties with respect to the subject matter hereof, and there are no other
agreements or arrangements, oral or written, express or implied, with respect to
the subject matter hereof.
B. This Agreement may not be modified, amended or terminated except
by a written agreement which specifically refers to this Agreement and is signed
by all of the parties.
14. Binding Effect; Partial Invalidity.
A. This Agreement shall be binding upon and inure to the benefit of
Buyer and Holdings and Buyer's and Holdings' successors and assigns and Seller,
and his heirs, personal representatives, administrators and assigns. This
Agreement may not be assigned by any party without the prior written consent of
each other party.
B. In the event that any provision of this Agreement is, or would
be, held invalid, prohibited or unenforceable in any jurisdiction for any
reason, unless such provision is narrowed by judicial construction, this
Agreement shall, as to such jurisdiction, be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drawn so as not to
be invalid, prohibited or unenforceable. If, notwithstanding the foregoing, any
provision of this Agreement would be held to be invalid, prohibited or
unenforceable in any jurisdiction for any reason, such provision, as to such
jurisdiction for any reason, shall be ineffective to the extent of such
invalidity, prohibition or unenforceability without invalidating the remaining
portion of such provision or the other provisions of this Agreement or affecting
the validity or enforceability of such provision in any other jurisdiction.
15. Further Assurances. Each party hereto agrees to execute and deliver all
such other instruments and take all such other action as another party hereto
may reasonably request from time to time hereafter and without payment of
further consideration in order to effectuate or evidence the transactions
contemplated hereby.
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16. Interpretation. This Agreement shall be interpreted and construed only
by the contents hereof, and there shall be no presumption or standard of
construction in favor or against any party.
17. Preamble. The preamble to this Agreement shall form an integral part of
this Agreement as if recited herein at length.
18. Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
19. Consent and Acknowledgment of Holdings; Waiver by Seller. Holdings
hereby consents to, and hereby waives any restrictions contained in the
Employment Agreement relating to, the transfer of the Options by Seller to Buyer
and acknowledges that each of the Options is fully vested and exercisable as of
June 30, 1997. Holdings hereby further agrees and acknowledges that,
notwithstanding anything contained in Section 6.D. of the Employment Agreement,
the number of shares of Common Stock subject to the Options has not been and
shall not be reduced by reason of such Section 6.D. Seller hereby waives any
rights he may have pursuant to Section 3.5(d) of the Shareholders Agreement in
connection with the sale of the Shares and the Options pursuant hereto.
20. No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall create any third-party beneficiary rights in any person or
entity; provided that each party to the Shareholders Agreement shall be an
express third-party beneficiary of Buyer's representations, warranties and
acknowledgments set forth in the first sentence of Section 6.D.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------
Xxxx X. Xxxxxxx
Vice President
-------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------
Xxxxx Xxxxxxxx
DFG HOLDINGS, INC.
By:
-------------------------------
Xxxxxxx Xxxxx
President
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