AMENDMENT TO PURCHASE AGREEMENT
Exhibit
2.2
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (this “Amendment”), dated as of December 23, 2009, is
made by and among Dollar Financial Group, Inc., a New York corporation (“Buyer”), Military
Financial Services, LLC, a Delaware limited liability company (“Target”), Southfield Partners, LLC,
a Delaware limited liability company (“Southfield”), Xxxxxx X. Xxxxx, a citizen and resident of
Florida (“Minor”), Xxx Xxxxxx, a citizen and resident of Florida (“Xxxxxx”), Xxxxx Xxxxxxxxx, a
citizen and resident of Kentucky (“Xxxxxxxxx”), and Xxxxxx X. Xxxxxx, a citizen and resident of
Kentucky (“Xxxxxx”). Each of Southfield, Minor, Jacobs, Xxxxxxxxx and Xxxxxx is referred to
individually as a “Seller”, and they are referred to collectively as the “Sellers”. Buyer, Sellers
and Target are referred to collectively herein as the “Parties” and individually as a “Party”.
RECITALS
A. Buyer, Target, and Sellers entered into that certain Purchase Agreement, dated as of
October 28, 2009 (the “Purchase Agreement”), pursuant to which Buyer has agreed to purchase from
Sellers, and Sellers have agreed to sell to Buyer, all of the outstanding membership interest of
Target. Capitalized terms used but not defined in this Amendment shall have the meanings assigned
to them in the Purchase Agreement.
B. The Parties desire to amend the Purchase Agreement as set forth below and the Parties have
agreed to such amendment on the terms and conditions set forth herein.
AGREEMENT
Now, therefore, in consideration of the premises and of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
Section 1. Amendments to Purchase Agreement.
(a) The definition of “Escrow Funds” is hereby added to Section 1 of the Purchase
Agreement in alphabetical order therein:
“Escrow Funds” has the meaning ascribed thereto in the Escrow Agreement.
(b) The definition of “Initial Payment” is hereby added to Section 1 of the Purchase
Agreement in alphabetical order therein:
“Initial Payment” has the meaning set forth in the Phantom Equity Surrender
Agreements.
(c) The definition of “Phantom Equity Payment” as set forth in Section 1 of the Purchase
Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof:
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“Phantom Equity Payment” means the sum of the amounts of the Initial Payments to
which the Phantom Equity Unitholders are entitled to receive as a result of the
Closing pursuant to the Phantom Equity Surrender Agreements.
(d) The definition of “Pro-Rata Allocable Share” is hereby added to Section 1 of the
Purchase Agreement in alphabetical order therein:
“Pro-Rata Allocable Share” means with respect to the share of any Seller or
Phantom Equity Unitholder, the percentage interest set forth below,
determined by dividing the number of Target Interest and/or Phantom Equity
Units held by any Seller or Phantom Equity Unitholder or to which any Seller
or Phantom Equity Unitholder is entitled by the aggregate total number of
issued and outstanding Target Interests and Phantom Equity Units:
| Seller | Target Interests | Percentage Interest | ||||||
Southfield Partners, LLC |
686,000 | 64.93 | % | |||||
Minor |
147,000 | 13.91 | % | |||||
Xxxxxx |
147,000 | 13.91 | % | |||||
Xxxxxxxxx (as Seller) |
10,000 | 0.95 | % | |||||
Xxxxxx (as Seller) |
10,000 | 0.95 | % | |||||
Phantom Equity Unitholder |
Phantom Equity Units | |||||||
Xxxxxx (as Phantom Equity Unitholder) |
22,222 | 2.10 | % | |||||
Xxxxxxxx Xxxxxx |
277.75 | 0.03 | % | |||||
Xxxxx Xxxxxx |
11,112 | 1.05 | % | |||||
Xxxxxx Xxxxxxx |
11,112 | 1.05 | % | |||||
Xxxxxx Xxxxx |
11,112 | 1.05 | % | |||||
Xxxxxxxxx (as Phantom Equity Unitholder) |
694.5 | 0.07 | % | |||||
TOTAL: |
1,056,530.25 | 100.00 | % | |||||
(e) The definition of “Sellers’ Aggregate Pro-Rata Allocable Share” is hereby added to
Section 1 of the Purchase Agreement in alphabetical order therein:
“Sellers Aggregate Pro-Rata Allocable Share” means the sum of the Pro-Rata Allocable
Shares of the Sellers.
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(f) The definition of “Phantom Equity Unitholders’ Pro-Rata Allocable Share” is hereby added
to Section 1 of the Purchase Agreement in alphabetical order therein:
“Phantom Equity Unitholders’ Aggregate Pro-Rata Allocable Share” means the sum of
the Pro-Rata Allocable Shares of the Phantom Equity Unitholders.
(g) Section 2(b)(ii)(B) of the Purchase Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
to Target, by wire transfer of immediately available funds pursuant to the wiring
instructions set forth for Target on Exhibit D, an amount equal to the Phantom
Equity Payment, it being understood that Target shall then distribute such Phantom
Equity Payment, less all applicable withholding, ratably to the Phantom Equity
Unitholders in accordance with the terms of the Phantom Equity Surrender Agreements
as the “Initial Payments” required to be paid by Target thereunder.
(h) Section 2(c)(i) of the Purchase Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
(i) Target shall obtain from each Phantom Equity Unitholder prior to the Closing a
Phantom Equity surrender agreement substantially in the form attached hereto as
Exhibit E (each, an “Phantom Equity Surrender Agreement”), duly executed and
delivered by such Phantom Equity Unitholder, which shall include an agreement from
such Phantom Equity Unitholder that his or her Phantom Equity Units will be
terminated effective immediately prior to the Closing in consideration of the cash
payments described therein. Target and Sellers’ Representative shall deliver to
Buyer, no later than two (2) Business Days prior to the Closing Date, a certificate
duly executed by the Chief Financial Officer and the Chief Executive Officer of
Target attaching a statement setting forth the amount of the Phantom Equity Payment
and the Initial Payments that will be due to each Phantom Equity Unitholder pursuant
to such Phantom Equity Unitholder’s Phantom Equity Surrender Agreement at the
Closing (the “Phantom Equity Payment Statement”); provided, however, that Sellers’
Representative shall be entitled to revise the amounts set forth on such Phantom
Equity Payment Statement after its initial delivery to Buyer to make appropriate
adjustments to the Phantom Equity Payment and the Initial Payments, and the portion
thereof to which each Phantom Equity Unitholder is entitled, to account for the
change in the amount of the Estimated Working Capital Adjustment agreed to by Buyer
and Sellers’ Representative after Target’s initial delivery of its calculation of
the Estimated Working Capital Adjustment to Buyer. It shall be deemed for all
purposes of this Agreement that the Initial Payments are made pursuant to the
Phantom Equity Surrender Agreements, and the Phantom Equity Units are cancelled,
immediately prior to the sale of the Target Interests. It is the Parties’ intention
that Sellers bear the burden of making such Initial Payments and thus, are entitled
to any Tax deduction associated with such Initial Payments. Target, Buyer and
Sellers hereby agree not to take a position inconsistent with the preceding sentence
on any Tax Return or in any Tax-related proceeding.
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(i) Section 2(g)(i) of the Purchase Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
(i) If the Final Closing Working Capital Adjustment is positive (a “Positive
Adjustment Amount”), then Buyer shall, within 5 Business Days of the Final
Settlement Date, pay an aggregate amount equal to such Positive Adjustment Amount
plus interest on such amount at the Applicable Rate from the Closing Date to
the date such payment is made pursuant to this Section 2(g)(i) (calculated
on the basis of a year of 365 days and the actual number of days elapsed between the
Closing Date and such payment date) (the “Gross Positive Adjustment Amount”) as
follows: (A) Buyer shall deliver an amount equal to the product of the Gross
Positive Adjustment Amount and the Sellers’ Aggregate Pro-Rata Allocable Share to
the Sellers’ Representative, for the benefit of each Seller and each Phantom Equity
Unitholder, based upon each Seller’ Pro-Rata Allocable Share, by wire transfer of
immediately available funds to such account designated by the Sellers’
Representative, and (B) Buyer shall cause Target to deliver to the Phantom Equity
Unitholders an amount equal to the product of the Gross Allocable Adjustment Amount
and the Phantom Equity Unitholders’ Aggregate Pro-Rata Allocable Share in accordance
with the terms of the Phantom Equity Surrender Agreements (subject in each case to
withholding for taxes as shall be required to pursuant to any applicable law or
regulation).
(j) Section 2(j) of the Purchase Agreement is hereby deleted in its entirety and the
following is inserted in lieu thereof:
Restricted Cash. No later than five (5) Business Days after
March 15, 2011, Target shall pay an amount equal to fifty percent (50%) of
the amount of Restricted Cash as of the close of business on March 15, 2011
(the “Aggregate Restricted Cash Amount”) as follows: (i) Target shall
deliver an amount equal to the product of the Aggregate Restricted Cash
Amount and the Sellers’ Aggregate Pro-Rata Allocable Share to Sellers’
Representative, for the benefit of each Seller based upon each Seller’s
Pro-Rata Allocable Share, by wire transfer of immediately available funds to
such account designated by Sellers’ Representative, and (ii) Target shall
pay to the Phantom Equity Holders an amount equal to the product of the
Aggregate Restricted Cash Amount and the Phantom Equity Unitholders’
Aggregate Pro-Rata Allocable Share in accordance with the terms of the
Phantom Equity Surrender Agreements (subject in each case to withholding for
taxes as shall be required to pursuant to any applicable law or regulation).
(k) Section 8(b)(i)(C) of the Purchase Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
any amounts with respect to (1) Indebtedness not set forth on the Indebtedness
Statement, (2) Target Expenses not set forth on the Expense Statement, (3) Change of
Control Payments not set forth on the Change of Control Payment
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Statement, or (4) the Initial Payments or any other payments pursuant to the Phantom Equity Plan or
any Phantom Equity Units, but solely to the extent not specifically provided for in
this Agreement or the Phantom Equity Surrender Agreements;
(l) The following sentence shall be added to Section 8(g) of the Purchase Agreement
after the final sentence thereof:
To the extent that the Phantom Equity Holders are entitled under the terms of the
Phantom Equity Surrender Agreements to receive payments with respect to the Escrow
Funds, Target shall distribute to the Phantom Equity Holders, promptly after
Target’s receipt from the Escrow Agent pursuant to the terms of the Escrow
Agreement, such portion of the Escrow Funds to which each of the Phantom Equity
Unitholders is entitled in accordance with the provisions of such Phantom Equity
Unitholder’s Phantom Equity Surrender Agreements (subject to withholding for taxes
as shall be required to pursuant to any applicable law or regulation).
(m) Exhibit E to the Purchase Agreement is hereby deleted in its entirety and
Annex 1 attached hereto is inserted in lieu thereof.
(n) Exhibit H to the Purchase Agreement is hereby deleted in its entirety and
Annex 2 attached hereto is inserted in lieu thereof.
Section 2. Representations and Warranties. The Parties hereby represents and warrants
as follows:
(a) Such Party has all necessary power and authority (including, if such Party is an entity,
full corporate or other entity power and authority, and if such Party is a natural person, full
legal capacity) to execute and deliver this Amendment and to perform his, her, or its obligations
hereunder and thereunder. If such Party is an entity, the execution and delivery of this
Amendment, and the performance of its obligations and consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such Party.
(b) This Amendment has been duly and validly executed and delivered by such Party and,
assuming due authorization, execution and delivery by the other Parties, the Amendment is the valid
and legally binding obligation of such Party, enforceable in accordance with its terms and
conditions, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights
generally, and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in Law or equity).
Section 3. Miscellaneous.
(a) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION)
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THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(b) Counterparts. This Amendment may be executed in one or more counterparts (including by
means of facsimile), each of which shall be deemed an original but all of which
together will constitute one and the same instrument. This Amendment shall become effective
when each Party hereto shall have received counterparts thereof signed and delivered (by facsimile,
electronic transmission or otherwise) by all of the Parties hereto.
(c) Headings. The section headings contained in this Amendment are inserted for convenience
only and shall not affect in any way the meaning or interpretation of
this Amendment.
(d) Severability. Any term or provision of this Amendment that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(e) Construction. The Parties have participated jointly in the negotiation and drafting of
this Amendment. In the event an ambiguity or question of intent or interpretation arises, this
Amendment shall be construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Amendment.
(f) Incorporation of Exhibits, Annexes, and Schedules. The Exhibits, Annexes, and Schedules
identified in this Amendment are incorporated herein by reference and made a part hereof.
(g) Purchase Agreement. Except as expressly set forth herein, the amendments provided herein
shall not by implication or otherwise limit, constitute a waiver of, or otherwise affect the rights
and remedies of the Parties under the Purchase Agreement or any other related document, nor shall
they constitute a waiver of any Default, nor shall they alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in the Purchase
Agreement or any related document. Each of the amendments provided herein shall apply and be
effective only with respect to the provisions of the Purchase Agreement specifically referred to by
such amendment. Except as expressly amended herein, the Purchase Agreement shall continue in full
force and effect in accordance with the provisions thereof.
[Signature page follows this page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
duly authorized officers, all as of the date first above written.
| DOLLAR FINANCIAL GROUP, INC. |
|||||
| By: | /s/ Xxx X. Xxxxxxx | ||||
| Name: | Xxx X. Xxxxxxx | ||||
| Title: | Senior Vice President and Secretary | ||||
| SOUTHFIELD PARTNERS, LLC | |||||
| By: | Southfield Capital Advisors, LLC, its Manager | ||||
| By: | /s/ Xxxxxxx X. Dell'Aquila | ||||
| Name: | Xxxxxxx X. Dell'Aquila | ||||
| Title: | Principal | ||||
| /s/ Xxxxxx X. Xxxxx | |||||
| Xxxxxx X. Xxxxx | |||||
| /s/ Xxx Xxxxxx | |||||
| Xxx Xxxxxx | |||||
| /s/ Xxxxx Xxxxxxxxx | |||||
| Xxxxx Xxxxxxxxx | |||||
| /s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxxx X. Xxxxxx | |||||
