UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
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FAMILY BARGAIN CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01
(Title of Class of Securities)
306889403
(CUSIP Number)
-----------------------
ROBERT M. HIRSH, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NY 10019-6064
TEL. NO.: (212) 373-3000
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
-----------------------
MARCH 14, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
statement because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP NO. 306889403
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Terfin International, Ltd.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
7 SOLE VOTING POWER
NUMBER OF 2,514,546 including Series B Preferred
SHARES convertible into 2,359,002 shares of
BENEFICIALLY OWNED Common Stock
BY EACH REPORTING
PERSON
WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
2,514,546 including Series B Preferred convertible
into 2,359,002 shares of Common Stock
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,514,546 including Series B Preferred convertible into 2,359,002
shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.4%
14 TYPE OF REPORTING PERSON
CO
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<PAGE>
CUSIP NO. 306889403
AMENDMENT NO. 1 TO SCHEDULE 13D
THIS AMENDMENT NO. 1 SUPPLEMENTS THE SCHEDULE 13D ("SCHEDULE 13D"), FILED
ON JANUARY 22, 1997, IN THE FOLLOWING RESPECTS ONLY (CAPITALIZED TERMS USED
HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THE SCHEDULE 13D):
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended and restated in its entirety as follows:
(a) Terfin may, pursuant to Rule 13d-3 of the Exchange Act, be
deemed to be the beneficial owner of 2,514,546 shares of Common Stock (including
2,359,002 shares of Common Stock issuable upon conversion of the 4,484 shares of
the Series B Preferred and 47,297 shares of Common Stock issued upon conversion
of 17,745 shares of the Series A Preferred held by Terfin), which constitutes
approximately 35.4% of the 7,099,636 shares of Common Stock deemed outstanding
with respect to Terfin pursuant to Rule 13d-3(d)(1)(i) of the Exchange Act.
(b) Terfin has the sole power to vote, direct the vote of, dispose
of or direct the disposition of any and all Common Stock held by Terfin.
(c) Except as set forth herein or in Exhibits filed herewith,
neither Terfin, nor to the best knowledge of Terfin, any of the persons listed
in Item 2(a) has effected any transaction in the Common Stock of the Company
within the past 60 days.
(d) Except as set forth in this Item 5, to the best knowledge of
Terfin, none of the persons named in Item 2(a) beneficially owns any shares of
Common Stock of the Company. On the basis of its control, through an
intermediate holding company, of Terfin, the board of directors of EQ may be
deemed to have the ultimate power to direct the voting or disposition, as well
as the application of dividends from, or the proceeds of the sale of, the Common
Stock owned by Terfin.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS
OR RELATIONSHIPS WITH RESPECT TO SECURITIES
OF THE ISSUER.
The second paragraph of Item 6 is amended to add the following:
9,100 of the additional 10,000 shares of Series B Preferred were
allocated among the designees and assignees of the Purchasers in the following
manner: (a) pursuant to a Joinder Agreement, dated as of February 20, 1997 (the
<PAGE>
CUSIP NO. 306889403
"Joinder Agreement"), a copy of which is attached hereto as Exhibit 1, made by
the persons named under the caption "Designees" on the signature pages thereof
(the "Designees"), the Purchasers allocated the remaining 5,000 shares of the
Company's Series B Preferred to the Designees and such Designees purchased such
5,000 shares of Series B Preferred; (b) an Amendment to Securities Purchase
Agreement made and entered into on March 10, 1997, a copy of which is attached
hereto as Exhibit 2, among the Purchasers and the Company amended the Securities
Purchase Agreement to provide the Purchasers and the Designees with the option
to purchase from the Company, ratably in proportion to the number of Securities
owned by each Purchaser and Designee as of March 10, 1997, up to 5,000 shares of
Series B Preferred; and (c) pursuant to an Assignment and Assumption and Joinder
Agreement, dated as of March 14, 1997 (the "Assignment and Assumption
Agreement"), a copy of which is attached hereto as Exhibit 3, the Purchasers and
Klingenstein Charitable Partners B assigned their rights to purchase 4,100
shares of the Company's Series B Preferred to the persons listed on the
signature pages thereof under the caption "Assignees." On March 14, 1997, Terfin
converted its 17,745 shares of Series A Preferred to Common Stock. Pursuant to a
Securities Purchase Agreement, dated as of March 14, 1997 (the "March 1997
Securities Purchase Agreement"), a copy of which is attached hereto as Exhibit
4, by and between the Purchasers and the purchasers listed on the signature
pages thereof (the "Buyers"), Terfin sold 25,509 shares of Common Stock at
Purchasers' cost to the Buyers in exchange for 84 shares of Series B Preferred.
As a result of the foregoing transactions, Terfin (a) acquired 84 shares of
Series B Preferred, (b) acquired 21,788 shares of Common Stock and (c) disposed
of 17,745 shares of Series A Preferred.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Joinder Agreement
Exhibit 2 Amendment to Securities Purchase Agreement
Exhibit 3 Assignment and Assumption Agreement
Exhibit 4 March 1997 Securities Purchase Agreement
<PAGE>
CUSIP NO. 306889403
SIGNATURE
After reasonable inquiry and to the best of the knowledge and belief
of the undersigned, the undersigned certifies that the information set forth in
this statement is true, complete and correct.
Dated: April 4, 1997
TERFIN INTERNATIONAL LTD.
By: /S/ J. WILLIAM UHRIG
------------------------
Name: J. William Uhrig
Title: Attorney-in-Fact
<PAGE>
CUSIP NO. 306889403
EXHIBIT INDEX
Page on which
NUMBER DOCUMENT EXHIBIT APPEARS
- ------ -------- ---------------
1 Joinder Agreement
2 Amendment to Securities Purchase Agreement
3 Assignment and Assumption Agreement
4 March 1997 Securities Purchase Agreement
CONFORMED COPY
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of February 20, 1997, made by the
individuals and institutions named under the caption "Designees" on the
signature pages hereof (collectively, the "DESIGNEES") pursuant to the
Securities Purchase Agreement, dated December 30, 1996 (as amended, supplemented
or otherwise modified from time to time, the "SECURITIES PURCHASE AGREEMENT"),
among Family Bargain Corporation, a Delaware corporation (the "COMPANY"), and
the Persons set forth on Schedule 2.2 thereto (the "PURCHASERS"). Unless
otherwise defined herein, terms defined in the Securities Purchase Agreement and
used herein shall have the meanings given to them in the Securities Purchase
Agreement.
WHEREAS, pursuant to Section 2 of the Securities Purchase Agreement,
the Purchasers desire to allocate the remaining 5,000 shares of the Company's
Series B Preferred (the "Securities") of their deferred obligation to purchase
such Series B Preferred among the Designees.
WHEREAS, the Company desires to sell to the Designees, and the
Designees desire to purchase, the Securities at the Purchase Price Per Security
(or $5,000,000.00 in the aggregate) upon the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the suffi
ciency of which hereby is acknowledged, each Designee hereby agrees as follows:
(a) It shall (i) be deemed to be a Purchaser for all purposes under
the Securities Purchase Agreement and shall have all the rights and obligations
of a Purchaser thereunder, except pursuant to Section 2.3 of the Securities
Purchase Agreement, and (ii) be deemed to be a Holder (as defined in the
Registration Rights Agreement) for all purposes under the Registration Rights
Agreement and shall have all the rights and obligations of a Holder thereunder;
(b) It hereby acknowledges that it has received and reviewed, and is
relying upon in making its investment decision, a copy (in executed form) of (i)
the Securities Purchase Agreement (including, without limitation, all
amendments, supple ments and other modifications thereto), (ii) the Disclosure
Letter, (iii) each of the Transaction Agreements referred to in the Securities
Purchase Agreement (including, without limitation, all amendments, supplements
and other modifications thereto), (iv) all documents, agreements and
certificates (including, without limitation, all amendments, supplements and
other modifications thereto) related to the Securities Purchase Agreement and
the Transaction Agreements delivered at the Initial Closing, (v) all documents
(including, without limitation, all amendments, supplements and other
modifications thereto) delivered on January 13, 1997 related to the closing of
the Separation Agreement, (vi) the Company's Annual Report on Form 10-K for the
year ended January 27, 1996 (as amended by the Company's Form 10-K/A, dated
<PAGE>
2
May 14, 1996), as filed with the SEC (including, in each case, all exhibits and
schedules thereto and documents incorporated by reference therein) and (vii) the
Company's Quarterly Report on Form 10-Q for the quarter ended October 26, 1996,
as filed with the SEC.
(c) It shall (i) be bound by all covenants, agreements, acknowledg
ments and other terms and provisions (except the representations and warranties
of Purchasers other than as expressly provided herein) applicable to it, as a
Purchaser pursuant to the Securities Purchase Agreement and the other
Transaction Agreements to the same extent, and in the same manner, as if it were
a direct party thereto; PROVIDED, HOWEVER, it shall be bound by, and does hereby
make with respect to itself, the representations and warranties of Purchasers
contained in Sections 5.1, 5.2, 5.3, 5.4 and 5.5 of the Securities Purchase
Agreement, and (ii) perform all obligations required of its pursuant to the
Securities Purchase Agreement and such Transaction Agreements.
(d) It hereby acknowledges that no other representations and
warranties are being made to it as a Purchaser by the Company other than those
made in Section 4 of the Securities Purchase Agreement to the same extent, and
in the same manner as if it (in its capacity as a Purchaser) were a direct party
thereto;
(e) It hereby acknowledges that the Purchasers listed on Schedule
2.2 of the Securities Purchase Agreement are not making any representations and
warranties to it and have no liabilities or obligations to it pursuant to the
Securities Purchase Agreement, this Joinder Agreement or otherwise.
This Joinder Agreement shall become effective upon the last to occur
of (a) the due execution and delivery of this Joinder Agreement by all parties
hereto, (b) the delivery to each of the Designees of certificates representing
such number of Securities as are set forth opposite such Designees name on
Schedule 2.2A hereto, each registered in the name of such Designee or its
nominees, and (c) payment of the Purchase Price Per Security with respect to
such Securities by wire transfer of immediately available funds to an account or
accounts previously designed by the Company.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Joinder Agreement may be executed in counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
<PAGE>
3
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered in New York, New York, United States of America by
its proper and duly authorized officer as of the date first written above.
DESIGNEES:
----------
KLINGENSTEIN CHARITABLE
PARTNERS B
By: /S/ KENNETH H. FIELDS
------------------------------------
Name: Kenneth H. Fields
Title: Trustee
K. INVESTMENT PARTNERS L.P. II
By:/S/ KENNETH H. FIELDS
------------------------------------
Name: Kenneth H. Fields
Title: General Partner
ELL & CO. FBO AT&T INVESTMENT
MANAGEMENT CORP.
TRUSSAL & CO. FBO M.E.R.S. OF
MICHIGAN
BOSTON SAFE DEPOSIT TRUST CO.
FBO VIRGINIA RETIREMENT SYSTEM
HOW & CO. FBO COLUMBIA
HEALTHCARE CORP.
SIGLAR & CO. FBO IRON WORKERS
PENSION TRUST FUND
ELL & CO. FBO OKLAHOMA LAW
ENFORCEMENT RETIREMENT
SYSTEM
BEAMPORT & CO. FBO SCHWAN'S
PROFIT SHARING TRUST
SALKELD & CO. FBO DONALDSON
COMPANY, INC.
<PAGE>
4
IOWA STATE UNIVERSITY
FOUNDATION
MAC & CO. FBO KRESGE
FOUNDATION
STATE STREET BANK & TRUST CO.
FBO MONTGOMERY COUNTY
EMPLOYEE RET
MAC & CO. FBO LOCAL 25 SEIU
PITT & CO. FBO TRACOR INC.
SALKELD & CO. FBO SISTERS OF ST.
JOSEPH OF CARONDELET
PITT & CO. FBO CITY OF NEW
HAVEN
BOST & CO. FBO THE COMMON
FUND
HOW & CO. FBO OUTBOARD
MARINE
By: Kennedy Capital Management,
Inc., as Attorney-In-Fact
By:/S/ RICHARD SINISE
------------------------------------
Name: Richard Sinise
Title: Portfolio Manager
By:/S/ JAMES D. SOMERVILLE
------------------------------------
James D. Somerville
By:/S/ RONALD RASHKOW
------------------------------------
Ronald Rashkow
By:/S/ LINDA RASHKOW
------------------------------------
Linda Rashkow
<PAGE>
5
By:/S/ AMY RASHKOW
------------------------------------
Amy Rashkow
By:/S/ MARK RASHKOW
------------------------------------
Mark Rashkow
By:/S/ ANDREW RASHKOW
------------------------------------
Andrew Rashkow
By:/S/ NORMAN CHAPMAN
------------------------------------
Norman Chapman
JAMES L. KATZ PROFIT SHARING PLAN
By: Mesirow Financial Inc., as Agent
for Ellyn Katz, as Trustee
By:/S/ GREGORY J. KAMINSKI
------------------------------------
Name: Gregory J. Kaminski
Title: Supervisor - Retirement Plans Dept.
By:/S/ PETER HANDAL
------------------------------------
Peter Handal
<PAGE>
6
ACKNOWLEDGED AND AGREED
- -----------------------
TO:
- ---
THREE CITIES FUND II, L.P.
By: TCR Associates, L.P., as General
Partner
By:/S/ WILLEM F.P. DE VOGEL
------------------------------------
Name: Willem F.P. de Vogel
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: TCR Offshore Associates, L.P.,
as General Partner
By:/S/ J. WILLIAM UHRIG
------------------------------------
Name: J. William Uhrig
Title: General Partner
TERFIN INTERNATIONAL, LTD.
By:/S/ J. WILLIAM UHRIG
------------------------------------
Name: J. William Uhrig
Title: Attorney-In-Fact
FAMILY BARGAIN CORPORATION
By:/S/ WILLIAM W. MOWBRAY
------------------------------------
Name: William W. Mowbray
Title: President & Chief Executive Officer
<PAGE>
Schedule 2.2A to
JOINDER AGREEMENT
SECURITIES
Number of
DESIGNEES SECURITIES
- --------- ----------
Klingenstein Charitable Partners B 200
K. Investment Partners L.P. III 800
Ell & Co. FBO AT&T Investment Management Corp. 295
Trussal & Co. FBO M.E.R.S. of Michigan 475
Boston Safe Deposit Trust Co. FBO Virginia Retirement System 420
How & Co. FBO Columbia Healthcare Corp. 150
Siglar & Co. FBO Iron Workers Pension Trust Fund 35
Ell & Co. FBO Oklahoma Law Enforcement Retirement System 88
Beamport & Co. FBO Schwan's Profit Sharing Trust 150
Salkeld & Co. FBO Donaldson Company Inc. 65
Iowa State University Foundation 105
Mac & Co. FBO Kresge Foundation 250
State Street Bank & Trust Co. FBO Montgomery County
Employee RET 335
Mac & Co. FBO Local 25 SEIU 25
Pitt & Co. FBO Tracor Inc. 22
Salkeld & Co. FBO Sisters of St. Joseph of Carondelet 50
Pitt & Co. FBO City of New Haven 33
Bost & Co. FBO the Common Fund 242
How & Co. FBO Outboard Marine 260
James D. Somerville 250
Ronald Rashkow 100
Linda Rashkow 100
Amy Rashkow 50
Mark Rashkow 50
Andrew Rashkow 50
Norman Chapman 100
James L. Katz Profit Sharing Plan 50
Peter Handel 250
------
Total 5,000
CONFORMED COPY
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT is made and entered into as of March 10, 1997 among
Three Cities Fund II, L.P. ("Fund II"), Three Cities Offshore II C.V. ("Offshore
II"), Terfin International, Ltd. ("Terfin", and collectively with Fund II and
Offshore II the "Initial Purchasers") and Family Bargain Corporation, a Delaware
corporation (the "Company").
RECITALS
The Initial Purchasers and the Company entered into a Securities
Purchase Agreement, dated December 30, 1996, as supplemented by that certain
Joinder Agreement, dated as of February 20, 1997, made by the individuals and
institutions named under the caption "Designees" on the signature pages thereof
(the "Securities Purchase Agreement") pursuant to which the Purchasers purchased
27,000 shares of Series B Preferred of the Company. Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to them in the
Securities Purchase Agreement. The Initial Purchasers (as holders of the
Securities representing 81.48% of the aggregate outstanding Securities) desire
to amend Section 2.4 of the Securities Purchase Agreement and have requested the
Company to agree to the requested amendment. The Company, subject to the terms
and conditions set forth herein, has agreed to such amendment.
AGREEMENTS
IN CONSIDERATION of the foregoing recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agrees as follows:
1. AMENDMENT.
(a) Section 2.4 of the Securities Purchase Agreement is hereby
amended as follows:
2.4 POST-CLOSING OPTION. The Purchasers shall have an option
to purchase from the Company, ratably in proportion to the number of
Securities owned by each Purchaser as of March 10, 1997, at the same price
and on the same term and conditions as this Agreement, at any time up to
and including 90-days from the Initial Closing, up to 5,000 shares of
Series B Preferred in addition to the 27,000 shares purchased at the
Initial Closing and/or deferred pursuant to the proviso in Section 2.1.
This option may be exercised by any Purchaser by written notice by such
Purchaser to the Company;
<PAGE>
2
PROVIDED, HOWEVER, the option to purchase any Purchaser's portion of such
Securities may be assigned by such Purchaser to assignees pursuant to
Section 10.2 of this Agreement, which assignees may then exercise such
option by written notice to the Company.
2. REPRESENTATIONS AND WARRANTIES. The Initial Purchasers represent
and warrant that (i) all necessary corporate or partnership, as the case may be,
actions on the part of each Initial Purchaser to authorize the execution,
delivery and performance of this Amendment have been taken; (ii) this Amendment
has been duly validated and executed and is legally valid and binding upon each
Initial Purchaser and enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or like laws or by general equitable principals; (iii) no
consent, approval or authorization of, or filing, registration or qualification
with any governmental authority or any other Person is required to be obtained
by the Initial Purchasers in connection with the execution, delivery or
performance of this Amendment, which has already not been obtained or completed.
3. COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
4. GOVERNING LAW. This Amendment shall be a contract made
under and governed by the laws of the State of New York, without regard to the
conflicts of law provisions thereof.
5. BINDING EFFECT. This Amendment shall be binding upon and
shall enure to the benefit of the Initial Purchasers and the Company and their
respective successors and assigns.
6. REFERENCE TO SECURITIES PURCHASE AGREEMENT. Except as amended
hereby, the Securities Purchase Agreement shall remain in full force and effect
and is hereby ratified and confirmed in all respects. On and after the
effectiveness of the amendment to the Securities Purchase Agreement accomplished
hereby, each reference in the Securities Purchase Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import, in each reference to
the Securities Purchase Agreement in any other agreement document or instrument
executed and delivered pursuant to the Securities Purchase Agreement, shall be
deemed a reference to the Securities Purchase Agreement, as amended hereby.
<PAGE>
3
IN WITNESS WHEREOF, the undersigned have executed this Amendment to
Securities Purchase Agreement as of the day and year first above written.
FAMILY BARGAIN CORPORATION
By:/S/ WILLIAM W. MOWBRAY
------------------------------
Name: William Mowbray
Title: President & CEO
INITIAL PURCHASERS: THREE CITIES FUND II, L.P.
- -------------------
By: TCR Associates, L.P., as General
Partner
By:/S/ WILLEM F.P. DE VOGEL
------------------------------
Name: Willem F.P. de Vogel
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: TCR Offshore Associates, L.P., as
General Partner
By:/S/ J. WILLIAM UHRIG
------------------------------
Name: J. William Uhrig
Title: General Partner
TERFIN INTERNATIONAL, LTD.
By:/S/ J. WILLIAM UHRIG
------------------------------
Name: J. William Uhrig
Title: Attorney-In-Fact
CONFORMED COPY
ASSIGNMENT AND ASSUMPTION AND JOINDER AGREEMENT
AGREEMENT, dated as of March 14, 1997, among the Persons listed on
the signature pages hereto under the caption "Assignors" (collectively, the
"Assignors"), the Persons listed on the signature pages hereof under the caption
"Assignees" (the "Assignees") and Family Bargain Corporation, a Delaware
corporation (the "Company").
WHEREAS, pursuant to that certain Securities Purchase Agreement,
dated December 30, 1996, as supplemented by that certain Joinder Agreement,
dated as of February 20, 1997, made by the individuals and institutions named
under the caption "Designees" on the signature pages thereof, and as amended by
that certain Amendment to Securities Purchase Agreement, dated as of March 10,
1997, among Three Cities Fund II, L.P., Three Cities Offshore II C.V., Terfin
International, Ltd. and the Company (the "Securities Purchase Agreement"), among
the Company and the Purchasers named therein, the Purchasers have the right to
purchase from the Company, ratably in proportion to the number of Securities
owned by each Purchaser, at the same price and on the same terms and conditions
as the Securities Purchase Agreement, at any time up to and including April 10,
1997, up to 5,000 additional shares of Series B Preferred (the "Additional
Securities").
WHEREAS, the Assignors desire to assign their right to purchase
4,100 shares of the Additional Securities to the Assignees as set forth opposite
each Assignee's name on Exhibit A attached hereto pursuant to Section 10.2 of
the Securities Purchase Agreement.
WHEREAS, each Assignee desires to (i) accept such assignment, (ii)
exercise its right to purchase such amount of Additional Securities as set forth
opposite such Assignee's name on Exhibit A pursuant to Section 2.4 of the
Securities Purchase Agreement and (iii) be deemed to be a Purchaser under the
Securities Purchase Agreement and to be bound by the terms and conditions of the
Securities Purchase Agreement as provided for herein.
WHEREAS, the Company desires to sell to the Assignees such amount of
Additional Securities upon the terms and conditions in the Securities Purchase
Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which hereby is acknowledged, the parties hereto agree as follows (unless
otherwise defined herein, terms defined in the Securities Purchase Agreement and
used herein shall have the meanings given to them in the Securities Purchase
Agreement):
<PAGE>
2
(a) Each of the Assignors hereby assigns, transfers and conveys to
each Assignee, and each Assignee hereby accepts and assumes, all right, title
and interest the Assignors have in, and with respect to, the option contained in
Section 2.4 of the Securities Purchase Agreement to purchase such amount of
Additional Securities as set forth on Exhibit A. Each Assignee hereby assumes
and agrees to perform all of the Purchaser's obligations and liabilities under
or related to the Securities Purchase Agreement with respect thereto;
(b) By execution hereof, each Assignee (i) hereby exercises the
option under Section 2.4 of the Securities Purchase Agreement with respect to
the amount of Additional Securities set forth on Exhibit A, (ii) shall be deemed
to be a Purchaser for all purposes under the Securities Purchase Agreement and
shall have all the rights and obligations of a Purchaser thereunder, except
pursuant to Section 2.3 thereof, and (iii) shall be deemed to be a Holder (as
defined in the Registration Rights Agreement) for all purposes under the
Registration Rights Agreement and shall have all the rights and obligations of a
Holder thereunder;
(c) Each Assignee hereby acknowledges that it has received and
reviewed, and is relying upon in making its investment decision, a copy (in
executed form) of (i) the Securities Purchase Agreement (including, without
limitation, all amendments, supplements and other modifications thereto), (ii)
the Disclosure Letter to the Securities Purchase Agreement, (iii) each of the
Transaction Agreements referred to therein (including, without limitation, all
amendments, supplements and other modifications thereto), (iv) all documents,
agreements and certificates (including, without limitation, all amendments,
supplements and other modifications thereto) related to the Securities Purchase
Agreement and the Transaction Agreements delivered at the Initial Closing, (v)
all documents (including, without limitation, all amendments, supplements and
other modifications thereto) delivered on January 13, 1997 related to the
closing of the Separation Agreement, (vi) the Company's Annual Report on Form
10-K for the year ended January 27, 1996 (as amended by the Company's Form
10-K/A, dated May 14, 1996), as filed with the SEC (including, in each case, all
exhibits and schedules thereto and documents incorporated by reference therein)
and (vii) the Company's Quarterly Report on Form 10-Q for each of the quarters
ended April 27, 1996, July 27, 1996 and October 26, 1996, as filed with the SEC;
(d) Each Assignee agrees that it shall (i) be bound by all
covenants, agreements, acknowledgments and other terms and provisions (except
the representations and warranties of Purchasers other than as expressly
provided herein) applicable to it, as a Purchaser pursuant to the Securities
Purchase Agreement and the other Transaction Agreements to the same extent, and
in the same manner, as if it were a direct party thereto; PROVIDED, HOWEVER, it
shall be bound by, and does hereby make with respect to itself, the
representations and warranties of Purchasers contained in Sections 5.1, 5.2,
5.3, 5.4 and 5.5 of the Securities Purchase Agreement, and (ii)
<PAGE>
3
perform all obligations required of it pursuant to the Securities Purchase
Agreement and such Transaction Agreements;
(e) Each Assignee hereby acknowledges that no other representations
and warranties are being made to it as a Purchaser by the Company other than
those made in Section 4 of the Securities Purchase Agreement to the same extent,
and in the same manner as if it (in its capacity as a Purchaser) were a direct
party thereto; and
(f) Each Assignee hereby acknowledges that the Assignors are not
making any representations and warranties to the Assignees and have no
liabilities or obligations to the Assignees pursuant to the Securities Purchase
Agreement, this Agreement or otherwise.
This Agreement shall become effective upon the last to occur of (a)
the due execution and delivery of this Agreement by all parties hereto, (b) the
delivery to each Assignee of certificates representing such number of Additional
Securities as are set forth opposite such Assignee's name on Exhibit A hereto,
each registered in the name of such Assignee or its nominees, and (c) payment of
the Purchase Price Per Security with respect to such amount of Additional
Securities by wire transfer of immediately available funds to an account or
accounts previously designated by the Company.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Assignors and the Assignees.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be executed in counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to be one
and the same instrument.
<PAGE>
4
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered in New York, New York, United States of America by
its proper and duly authorized officer as of the date first written above.
FAMILY BARGAIN CORPORATION
By:/S/ WILLIAM W. MOWBRAY
-----------------------------------
Name: William Mowbray
Title: President & CEO
ASSIGNORS: THREE CITIES FUND II, L.P.
- ----------
By: TCR Associates, L.P., as General
Partner
By:/S/ WILLEM F.P. DE VOGEL
-----------------------------------
Name: Willem F.P. de Vogel
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: TCR Offshore Associates, L.P., as
General Partner
By:/S/ J. WILLIAM UHRIG
-----------------------------------
Name: J. William Uhrig
Title: General Partner
TERFIN INTERNATIONAL, LTD.
By:/S/ J. WILLIAM UHRIG
-----------------------------------
Name: J. William Uhrig
Title: Attorney-In-Fact
<PAGE>
5
KLINGENSTEIN CHARITABLE
PARTNERS B
By:/S/ FREDERICK A. KLINGENSTEIN
-----------------------------------
Name: Frederick A. Klingenstein
Title: Managing Partner
ASSIGNEES: THE BANK OF NEW YORK AS
TRUSTEE FOR THE EMPLOYEES
RETIREMENT PLAN OF THE
BROOKLYN UNION GAS COMPANY
By:/S/ EUGENE J. FORAN
-----------------------------------
Name: Eugene J. Foran
Title: Vice President
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
PENSION TRUST
By:/S/ ROBERT DAMISH
-----------------------------------
Name: Robert Damish
Title: Officer
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
BENEFIT ASSURANCE TRUST
By:/S/ ROBERT DAMISH
-----------------------------------
Name: Robert Damish
Title: Officer
By:/S/ JOHN BORER
-----------------------------------
John J. Borer III
<PAGE>
EXHIBIT A TO
ASSIGNMENT AND ASSUMPTION
AND JOINDER AGREEMENT
SECURITIES
Number of
ASSIGNEE SECURITIES
- -------- ----------
The Employees Retirement Plan of the
Brooklyn Union Gas Company 2,500
Boston Safe Deposit & Trust Company,
Trustee for US West Pension Trust 1,125
Boston Safe Deposit & Trust Company,
Trustee for US West Benefit Assurance
Trust 375
John J. Borer III 100
----------
Total 4,100
CONFORMED COPY
SECURITIES PURCHASE AGREEMENT
by and between
THREE CITIES FUND II, L.P., THREE CITIES OFFSHORE II
L.P. and TERFIN INTERNATIONAL, LTD.
and
THE PURCHASERS LISTED HEREIN
as of March 14, 1997
<PAGE>
THIS SECURITIES PURCHASE AGREEMENT is made as of this 14th day of
March, 1997, by and between the Purchasers listed on the signature pages hereof
(the "Purchasers") and Three Cities Fund II, L.P. ("Fund II"), Three Cities
Offshore II L.P. ("Offshore II") and Terfin International, Ltd. ("Terfin",
collectively with Fund II and Offshore II, the "Sellers").
W I T N E S S E T H
WHEREAS, each of Fund II, Offshore II and Terfin own certain equity
securities of Family Bargain Corporation, a Delaware corporation (the
"Company"), as more fully described herein (collectively, the "Equity
Securities").
WHEREAS, the parties desire for the Purchasers to purchase the
Equity Securities in accordance with the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, each intending to be legally bound, hereby agree
as follows:
1. PURCHASE AND SALE OF EQUITY SECURITIES. Fund II, Offshore II and
Terfin hereby agree to sell to the Purchasers, and the Purchasers hereby agree
to purchase from Fund II, Offshore II and Terfin, the Equity Securities as set
forth in Schedule 1 hereof. Fund II, Offshore II and Terfin shall deliver such
Equity Securities to the Purchasers, free and clear of all liens, security
interests, pledges, claims and encumbrances of every kind, nature and
description.
2. CONSIDERATION TO FUND II, OFFSHORE II AND TERFIN. As
consideration for the Equity Securities, the Purchasers will deliver on the
Closing
<PAGE>
Date (as defined herein) to Fund II, Offshore II and Terfin the number of shares
of Series B Junior Convertible, Exchangeable Preferred Stock, par value $.01 per
share (the "Series B Preferred"), of the Company as set forth in Schedule 1
hereto (the "Stock Consideration").
3. REPRESENTATIONS AND WARRANTIES BY FUND II, OFFSHORE II AND
TERFIN. As material inducement for the Purchasers to enter into this Agreement,
each of Fund II, Offshore II and Terfin hereby jointly and severally represents
and warrants to the Purchasers as follows:
a. That it has full corporate or partnership, as the case may
be, power and authority to consummate the transactions contemplated by this
Agreement; that this Agreement constitutes the valid and binding obligation of
it, enforceable against it in accordance with its terms; that neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated herein in the manner herein provided, will violate any
agreement to which it is a party or by which it is bound, or any law, order,
decree or judgment applicable to it; and that any authorization, approval or
consent of any third party that is required for the lawful execution, delivery
and performance of this Agreement by it has been obtained.
b. That it transfers the Equity Securities attributed to it on
Schedule 1 attached hereto, free and clear of all liens, security interests and
claims and encumbrances of every kind, nature and description.
4. REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS. As material
inducement for the Sellers to enter into this Agreement, the Purchasers hereby
represent and warrant to the Sellers as follows:
2
<PAGE>
a. That the Purchasers have full corporate or trust, as the
case may be, power and authority to consummate the transactions contemplated by
this Agreement.
b. That this Agreement constitutes the legal, valid, and
binding obligations of the Purchasers, enforceable against them in accordance
with their respective terms.
c. That neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated herein in the manner
provided herein, will violate any agreement to which any Purchaser is a party or
by which it or any of its property or assets is bound, or any law, order, decree
or judgment applicable to any Purchaser, or any provision of their certificate
of incorporation or by-laws or similar organizational documents, and that no
authorization, approval or consent of any third party is required for the lawful
execution, delivery and performance of this Agreement by any Purchaser.
d. That the execution, delivery, and performance of this
Agreement has been duly authorized by all necessary corporate or trust action,
as the case may be, on the part of each Purchaser.
e. That it transfers the Stock Consideration due from and
payable by it as listed on Schedule 1 attached hereto, free and clear of all
liens, security interests and claims and encumbrances of every kind, nature and
description.
f. That the Purchasers are purchasing the Equity Securities
for purposes of investment and not with a view toward the distribution thereof.
3
<PAGE>
5. TERMINATION. This Agreement may be terminated by Fund II,
Offshore II or Terfin or the Purchasers, if the Assignment and Assumption and
Joinder Agreement (as defined herein) is terminated.
6. DELIVERIES.
a. FUND II, OFFSHORE II AND TERFIN DELIVERIES. On the Closing
Date, Fund II, Offshore II and Terfin have delivered or caused to be delivered
to the Purchasers certificates for the Equity Securities, endorsed by the holder
thereof in blank or with stock transfer powers executed by the holder thereof in
blank attached.
b. PURCHASERS DELIVERY. On the Closing Date, the Purchasers
shall deliver to Fund II, Offshore II and Terfin the certificates for the Stock
Consideration, endorsed by the holder thereof in blank or with stock powers
executed by the holder thereof in blank attached.
7. MISCELLANEOUS.
a. INDULGENCES, ETC. Neither the failure nor any delay on the
part of any party to execute any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
4
<PAGE>
b. CONTROLLING LAW. THIS AGREEMENT AND ALL QUESTIONS RELATING
TO ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT (INCLUDING, WITHOUT
LIMITATION, PROVISIONS CONCERNING LIMITATIONS OF ACTIONS), SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
c. NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
personally delivered, or on the next business day when deposited with a
reputable overnight courier service, such as Federal Express, for delivery to
the intended addressee. All notices shall be addressed as follows:
(i) If to the Purchasers, as provided on Schedule 2
hereto;
(ii) If to the Sellers:
c/o Three Cities Research, Inc.
135 East 57th Street
New York, NY 10022
Attn.: J. William Uhrig
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attention: Robert M. Hirsh, Esq.
Any person may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this
5
<PAGE>
subparagraph for the giving of notice, and such alteration shall become
effective upon actual receipt.
d. BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, personal representatives, successors and assigns,
except that no party may assign or transfer its rights nor delegate its duties
under this Agreement without the prior written consent of the other parties
hereto.
e. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original as against the
party whose signature appears thereon, and both of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one (1) or more counterparts hereof, individually or taken together, shall bear
the signatures of each of the parties reflected hereon as the signatories.
f. PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provisions shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
g. PARAGRAPH HEADINGS. The Paragraph and subparagraph headings
in this Agreement are for convenience of reference only; they form no part of
this Agreement and shall not affect its interpretation.
h. GENDER, ETC. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any
6
<PAGE>
other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context indicates is appropriate.
i. NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, only business days shall be counted.
j. EXHIBITS AND SCHEDULES. All Schedules attached hereto
are hereby incorporated by reference into, and made a part of, this Agreement.
k. ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein and therein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.
l. CLOSING. Subject to the terms and conditions of this
Agreement, the closing (the "Closing") with respect to this Agreement shall
occur concurrently with the execution and delivery of the Assignment and
Assumption and Joinder Agreement, dated as of March 14, 1997 (the "Assignment
and Assumption Agreement"), among the Persons listed on the signature pages
thereto under the caption "Assignors", the Persons listed on the signature pates
thereto under the caption "Assignees" and the Company, at the offices of Paul,
Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New
York 10019, or at such other date and such other place as the parties hereto
shall agree (the "Closing Date").
7
<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
Purchasers: THE BANK OF NEW YORK AS TRUSTEE
FOR THE EMPLOYEES RETIREMENT
PLAN OF THE BROOKLYN UNION GAS
COMPANY
By:/S/ EUGENE J. FORAN
-----------------------------------
Name: Eugene J. Foran
Title: Vice President
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
PENSION TRUST
By:/S/ BOB DAMISH
-----------------------------------
Name: Bob Damish
Title: Officer
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
BENEFIT ASSURANCE TRUST
By:/S/ BOB DAMISH
-----------------------------------
Name: Bob Damish
Title: Officer
By:/S/ JOHN BORER
-----------------------------------
John J. Borer III
8
<PAGE>
Sellers: THREE CITIES FUND II, L.P.
By: TCR Associates, L.P.,
as General Partner
By: /S/ WILLEM F.P. DE VOGEL
-----------------------------------
Name: Willem F.P. de Vogel
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: TCR Associates Offshore, L.P.,
as General Partner
By: /S/ J. WILLIAM UHRIG
-----------------------------------
Name: J. William Uhrig
Title: General Partner
TERFIN INTERNATIONAL LTD.
By: /S/ J. WILLIAM UHRIG
-----------------------------------
Name: J. William Uhrig
Title: Attorney-In-Fact
9
<PAGE>
SCHEDULE 1
EQUITY SECURITIES SOLD AND CONSIDERATION THEREFOR
- -------------------------------------------------
<TABLE>
<CAPTION>
Shares of
Common Series B
Stock Preferred Received
SELLER SOLD AS CONSIDERATION
- ------ ---- ----------------
<S> <C> <C>
Three Cities Fund II, L.P. 37,916 125
Three Cities Offshore II C.V 64,121 212
Terfin International, Ltd. 25,509 84
------- -------
TOTAL 127,546 421
EQUITY SECURITIES PURCHASED
<CAPTION>
Shares of
Common Series B
Stock Preferred Paid
PURCHASER BOUGHT AS CONSIDERATION
- --------- ------ ----------------
<S> <C> <C>
The Bank of New York as Trustee for the Employee
Retirement Plan of the Brooklyn Union Gas Company 77,772 257
Boston Safe Deposit & Trust Company, Trustee
for US WEST Pension Trust 34,997 116
Boston Safe Deposit & Trust Company, Trustee
for US WEST Benefit Assurance Trust 11,666 38
John J. Borer III 3,111 10
------- -------
TOTAL 127,546 421
</TABLE>
<PAGE>
SCHEDULE 2
ADDRESS OF PURCHASERS
The Employees Retirement Plan
of the Brooklyn Union Gas Company
c/o Thomas Riordan
Brooklyn Union Gas Co.
One Metro Tech Center
Brooklyn, NY 11201-3950
Boston Safe Deposit & Trust Company,
Trustee for US West Pension Trust
c/o John Picone
Rogers Casey Alternative Investments
One Parklands Drive
Darien, CT 06820
Boston Safe Deposit & Trust Company,
Trustee for US West Benefit Assurance Trust
c/o John Picone
Rogers Casey Alternative Investments
One Parklands Drive
Darien, CT 06820
John J. Borer III
Rodman & Renshaw
Two World Financial Center
Tower B, 30th Floor
New York, NY 10281
