0001144204-18-041426.txt : 20180801 0001144204-18-041426.hdr.sgml : 20180801 20180801172602 ACCESSION NUMBER: 0001144204-18-041426 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20180801 DATE AS OF CHANGE: 20180801 GROUP MEMBERS: BRIAN R. KAHN GROUP MEMBERS: KAHN CAPITAL MANAGEMENT, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Liberty Tax, Inc. CENTRAL INDEX KEY: 0001528930 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 273561876 STATE OF INCORPORATION: DE FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-87322 FILM NUMBER: 18985865 BUSINESS ADDRESS: STREET 1: 1716 CORPORATE LANDING PARKWAY CITY: VIRGINIA BEACH STATE: VA ZIP: 23454 BUSINESS PHONE: 757-493-8855 MAIL ADDRESS: STREET 1: 1716 CORPORATE LANDING PARKWAY CITY: VIRGINIA BEACH STATE: VA ZIP: 23454 FORMER COMPANY: FORMER CONFORMED NAME: JTH Holding, Inc. DATE OF NAME CHANGE: 20110830 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Vintage Capital Management LLC CENTRAL INDEX KEY: 0001511498 IRS NUMBER: 272297824 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 4705 S APOPKA VINELAND ROAD SUITE 210 CITY: ORLANDO STATE: FL ZIP: 32819 BUSINESS PHONE: 407-909-8015 MAIL ADDRESS: STREET 1: 4705 S APOPKA VINELAND ROAD SUITE 210 CITY: ORLANDO STATE: FL ZIP: 32819 SC 13D 1 tv499596_sc13d.htm SC 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. )*

Liberty Tax, Inc.

(Name of Issuer)

Class A Common Stock, par value $0.01 per share

(Title of Class of Securities)

53128T102

(CUSIP Number)

Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

(407) 909-8015

With a copy to:

Bradley L. Finkelstein

Douglas K. Schnell

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304

(650) 493-9300

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

July 19, 2018

(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 schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: ¨

Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 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).

CUSIP No. 53128T102

13D

Page 2 of 11

(1)	NAMES OF REPORTING PERSONS Vintage Capital Management, LLC
(2)	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) ¨ (b) ¨
(3)	SEC USE ONLY
(4)	SOURCE OF FUNDS (see instructions) OO
(5)	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
(6)	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	(7)	SOLE VOTING POWER
		0 shares
	(8)	SHARED VOTING POWER
		2,334,959 shares
	(9)	SOLE DISPOSITIVE POWER
		0 shares
	(10)	SHARED DISPOSITIVE POWER
		2,334,959 shares

(11)	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,334,959 shares
(12)	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
(13)	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.7%^*
(14)	TYPE OF REPORTING PERSON (see instructions) OO

^* Percentage calculated based on 12,823,020 shares of Class A common stock, par value $0.01 per share, outstanding as of April 23, 2018, as reported in the Definitive Proxy Statement on Schedule 14A filed by Liberty Tax, Inc. on April 27, 2018, plus (i) 200,000 shares of Class A common stock convertible from Class B common stock and (ii) 1,000,000 shares of Class A common stock resulting from the exchange of certain exchangeable shares.

CUSIP No. 53128T102

13D

Page 3 of 11

(1)	NAMES OF REPORTING PERSONS Kahn Capital Management, LLC
(2)	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) ¨ (b) ¨
(3)	SEC USE ONLY
(4)	SOURCE OF FUNDS (see instructions) OO
(5)	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
(6)	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	(7)	SOLE VOTING POWER
		0 shares
	(8)	SHARED VOTING POWER
		2,334,959 shares
	(9)	SOLE DISPOSITIVE POWER
		0 shares
	(10)	SHARED DISPOSITIVE POWER
		2,334,959 shares

(11)	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,334,959 shares
(12)	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
(13)	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.7%^*
(14)	TYPE OF REPORTING PERSON (see instructions) OO

CUSIP No. 53128T102

13D

Page 4 of 11

(1)	NAMES OF REPORTING PERSONS Brian R. Kahn
(2)	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a) ¨ (b) ¨
(3)	SEC USE ONLY
(4)	SOURCE OF FUNDS (see instructions) OO
(5)	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ¨
(6)	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	(7)	SOLE VOTING POWER
		0 shares
	(8)	SHARED VOTING POWER
		2,334,959 shares
	(9)	SOLE DISPOSITIVE POWER
		0 shares
	(10)	SHARED DISPOSITIVE POWER
		2,334,959 shares

(11)	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,334,959 shares
(12)	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
(13)	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.7%^*
(14)	TYPE OF REPORTING PERSON (see instructions) IN

Item 1.

Security and Issuer.

The securities to which this statement on Schedule 13D (this “Statement”) relates are the Class A common stock, par value $0.01 per share (the “Common Stock”), of Liberty Tax, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454.

Item 2.

Identity and Background.

(a)

Name

This Statement is filed by:

(i)

Vintage Capital Management, LLC, a Delaware limited liability company (“Vintage Capital”);

(ii)

Kahn Capital Management, LLC, a Delaware limited liability company (“Kahn Capital”), who serves as a member and majority owner of Vintage Capital; and

(iii)

Brian R. Kahn, who serves as (A) the manager and a member of Vintage Capital; and (B) the manager and sole member of Kahn Capital.

Vintage Capital, Kahn Capital and Mr. Kahn are referred to collectively as the “Reporting Persons.”

A portion of the shares of Common Stock to which this Statement relates are held by entities for which Vintage Capital serves as the investment advisor. Vintage Capital may be deemed to have beneficial ownership over these shares of Common Stock.

The Reporting Persons have entered into a joint filing agreement, a copy of which is attached as Exhibit 1.

(b)

Residence or Business Address

The address of the principal business and principal office of each of the Reporting Persons is 4705 S. Apopka Vineland Road, Suite 206, Orlando, Florida 32819.

(c)

Present Principal Occupation or Employment and the Name, Principal Business and Address of any Corporation or Other Organization in Which Such Employment Is Conducted

The principal business of Vintage Capital is acting as an investment manager.

The principal business of Kahn Capital is acting as a member of Vintage Capital.

The principal occupation of Mr. Kahn is acting as the manager of each of Vintage Capital and Kahn Capital.

(d)

Criminal Convictions

During the past five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

Page 5 of 11

(e)

Civil Proceedings

During the past five years, none of the Reporting Persons has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)

Citizenship

Mr. Kahn is a citizen of the United States of America.

Item 3.

Source and Amount of Funds or Other Consideration.

All of the shares of Common Stock to which this Statement relates were purchased on behalf of the Reporting Persons using the investment capital of the Reporting Persons. The aggregate purchase price of the 2,334,959 shares of Common Stock was approximately $20,582,519 (excluding commissions).

Item 4.

Purpose of Transaction.

The Reporting Persons purchased the shares of Common Stock for investment purposes, and such purchases were made in the ordinary course of business of the Reporting Persons. As of the date of this Statement, the transactions contemplated by the Stock Purchase Agreements and Amended and Restated Stock Purchase Agreements have not been consummated and the Reporting Persons do not have legal ownership of the Contracted Shares (as defined below).

In pursuing such investment purposes, the Reporting Persons may further purchase, hold, vote, trade, dispose or otherwise deal in the Common Stock at times, and in such manner, as they deem advisable to benefit from, among other things, (1) changes in the market prices of the shares of Common Stock; (2) changes in the Issuer’s operations, business strategy or prospects; or (3) from the sale or merger of the Issuer. To evaluate such alternatives, the Reporting Persons will closely monitor the Issuer’s operations, prospects, business development, management, competitive and strategic matters, capital structure, and prevailing market conditions, as well as other economic, securities markets and investment considerations. Consistent with their investment research methods and evaluation criteria, the Reporting Persons may discuss such matters with the management or Board of Directors of the Issuer (the “Board”), other stockholders, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, sources of credit, and other investors. Such evaluations and discussions may materially affect, and result in, among other things, the Reporting Persons (1) modifying their ownership of the Common Stock; (2) exchanging information with the Issuer pursuant to appropriate confidentiality or similar agreements; (3) proposing changes in the Issuer’s operations, governance or capitalization; (4) pursuing a transaction that would result in the Reporting Persons’ acquisition of all or a controlling interest in the Issuer; or (5) pursuing one or more of the other actions described in subsections (a) through (j) of Item 4 of Schedule 13D.

In addition to the information disclosed in this Statement, the Reporting Persons reserve the right to (1) formulate other plans and proposals; (2) take any actions with respect to their investment in the Issuer, including any or all of the actions set forth in subsections (a) through (j) of Item 4 of Schedule 13D; and (3) acquire additional shares of Common Stock or dispose of some or all of the shares of Common Stock beneficially owned by them, in each case in the open market, through privately negotiated transactions or otherwise. The Reporting Persons may at any time reconsider and change their plans or proposals relating to the foregoing.

Page 6 of 11

On July 19, 2018, Vintage Tributum, LP (“Vintage Tributum”) entered into stock purchase agreements (the “Stock Purchase Agreements”) with (1) John T. Hewitt and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management (together, the “Hewitt Parties”); and (2) Datatax Business Services Limited, 714718 Alberta, Ltd. and Steven Ibbotson (the “Ibbotson Parties”). On July 30, 2018, Vintage Tributum and the Hewitt Parties and the Ibbotson Parties, as applicable, amended and restated the Stock Purchase Agreements and entered into amended and restated stock purchase agreements (the “Amended and Restated Stock Purchase Agreements”). Pursuant to the Amended and Restated Stock Purchase Agreements, Vintage Tributum agreed to purchase a total of 1,498,261 shares of Common Stock (the “Contracted Shares”) and assigned the right to purchase 3,555,353 shares of Common Stock to the Cannell Entities (as defined below) and the B. Riley Entities (as defined below).

On July 19, 2018, in connection with the assignments described above, Vintage Tributum entered into voting agreements with (1) affiliates of Cannell Capital LLC (the “Cannell Entities”); and (2) B. Riley Financial, Inc. and certain of its affiliates (the “B. Riley Entities”). On July 31, 2018, Vintage Tributum entered into a voting agreement with Mr. Hewitt. All of these voting agreements are referred to as the “Voting Agreements.” Pursuant to the applicable Voting Agreements, each Stockholder (as defined in the Voting Agreement) agreed (1) not to transfer any of the shares of Common Stock subject to the Voting Agreement; and (2) to vote in favor of the election to the Board of Matthew Avril, Brian Kahn, Andrew Laurence, Bryant Riley and Brent Turner and against the election to the Board of any other individuals (unless otherwise agreed by Vintage Tributum). Each of the Voting Agreements will automatically terminate and be of no further force or effect upon the earliest to occur of (1) three months after the consummation of Vintage Tributum’s investment in the Issuer; (2) the agreement of the parties to the respective Voting Agreements; and (3) the election to the Board of the individuals nominated by Vintage Tributum. An aggregate of 1,163,175 shares of Common Stock are subject to the Voting Agreements (which does not include the 2,334,959 shares of Common Stock to which this Statement relates).

On July 19, 2018, Vintage Tributum entered into an agreement with the Issuer (the “Issuer Agreement”). Pursuant to the Issuer Agreement, (1) the Issuer agreed that the Board would take all necessary action to increase the size of the Board to nine directors consisting of five vacancies; and (2) Vintage Tributum agreed that at least three of the individuals elected by it to fill those vacancies would meet the standards necessary for the Board to reasonably determine that they are “independent” for purpose of the listing rules of The Nasdaq Stock Market.

The foregoing summary of the Stock Purchase Agreements, the Voting Agreements and the Issuer Agreement does not purport to be complete and is qualified in its entirety by the full text of each of the Stock Purchase Agreements, the Voting Agreements and the Issuer Agreement, which are attached as Exhibits 2, 3, 4 and 5 and are incorporated by reference.

Item 5.

Interest in Securities of the Issuer.

(a) and (b) The responses of the Reporting Persons to rows 7, 8, 9, 10, 11 and 13 on the cover pages of this Statement are incorporated herein by reference. As of 4:00 p.m., Eastern Time, on August 1, 2018, the Reporting Persons beneficially owned 2,334,959 shares of Common Stock, representing approximately 16.7% of the outstanding shares of Common Stock. The percentage in this paragraph relating to beneficial ownership of Common Stock is based on 12,823,020 shares of Common Stock outstanding as of April 23, 2018, as reported in the Definitive Proxy Statement on Schedule 14A filed by the Issuer on April 27, 2018, plus (i) 200,000 shares of Common Stock convertible from Class B common stock and (ii) 1,000,000 shares of Common Stock resulting from the exchange of certain exchangeable shares.

Page 7 of 11

A portion of the shares of Common Stock are held by entities for which Vintage Capital serves as the investment advisor. Vintage Capital may be deemed to have beneficial ownership over these shares of Common Stock.

Kahn Capital, as a member and the majority owner of Vintage Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Kahn Capital disclaims beneficial ownership of such shares for all other purposes.

Mr. Kahn, as the manager of each of Vintage Capital and Kahn Capital, may be deemed to have the power to direct the voting and disposition of the shares of Common Stock beneficially owned by Vintage Capital, and may be deemed to be the indirect beneficial owner of such shares. Mr. Kahn disclaims beneficial ownership of such shares for all other purposes.

To the knowledge of each of the Reporting Persons, other than as set forth above, none of the persons named in Item 2 is the beneficial owner of any shares of Common Stock.

(c) Except as set forth in Schedule A, none of the Reporting Persons has effected any transactions in the Common Stock in the 60 days prior to the date of this Statement.

(d) No other person is known to the Reporting Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock covered by this Statement.

(e) Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Other than as described in this Statement, to the knowledge of the Reporting Persons, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons or between the Reporting Persons and any other persons with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

Item 7.

Material to be Filed as Exhibits.

The following documents are filed as exhibits:

Exhibit Number		Description
1		Joint Filing Agreement (incorporated by reference to Exhibit 1 to the Schedule 13G filed by Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn on July 27, 2017).
2		Amended and Restated Stock Purchase Agreement, dated July 30, 2018, by and among Vintage Tributum LP, John T. Hewitt and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management.
3		Amended and Restated Stock Purchase Agreement, dated July 30, 2018, by and among Vintage Tributum LP, Datatax Business Services Limited, 714718 Alberta, Ltd. and Steven Ibbotson.
4		Form of Voting Agreement.
5		Agreement, dated July 19, 2018 by and between Liberty Tax, Inc. and Vintage Tributum LP.

Page 8 of 11

Schedule A

Transactions by the Reporting Persons in the Past 60 Days

The following table sets forth all unreported transactions with respect to the Common Stock effected in the last 60 days by or on behalf of the Reporting Persons, inclusive of any transactions effected through 4:00 p.m., Eastern Time, on August 1, 2018.

Person Effecting the Transaction	Transaction Date	Nature of Transaction	Number of Securities	Price Per Share
Vintage Tributum LP	July 19, 2018	Private purchases*	1,498,261	$8.54
Vintage Tributum LP	August 1, 2018	Open Market Purchase	165,000	$8.9477**

*As of 4:00 p.m., Eastern Time, on August 1, 2018, these purchases have not been consummated.

** (excluding commissions)

Page 9 of 11

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 1, 2018
	VINTAGE CAPITAL MANAGEMENT, LLC

	By:	/s/ Brian R. Kahn
		Name:	Brian R. Kahn
		Title:	Manager


	KAHN CAPITAL MANAGEMENT, LLC

	By:	/s/ Brian R. Kahn
		Name:	Brian R. Kahn
		Title:	Manager


	/s/ Brian R. Kahn
	Brian R. Kahn

Page 10 of 11

EXHIBIT INDEX

Exhibit Number		Description
1		Joint Filing Agreement (incorporated by reference to Exhibit 1 to the Schedule 13G filed by Vintage Capital Management, LLC, Kahn Capital Management, LLC and Brian R. Kahn on July 27, 2017).
2		Amended and Restated Stock Purchase Agreement, dated July 30, 2018, by and among Vintage Tributum LP, John T. Hewitt and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management.
3		Amended and Restated Stock Purchase Agreement, dated July 30, 2018, by and among Vintage Tributum LP, Datatax Business Services Limited, 714718 Alberta, Ltd. and Steven Ibbotson.
4		Form of Voting Agreement.
5		Agreement, dated July 19, 2018 by and between Liberty Tax, Inc. and Vintage Tributum LP.

Page 11 of 11

EX-99.2 2 tv499596_ex99-2.htm EXHIBIT 2

Exhibit 2

AMENDED AND RESTATED STOCK PURCHASE AGREEMENT

This Amended and Restated Stock Purchase Agreement (this “Agreement”) is entered into as of July 30, 2018 by and between Vintage Tributum LP, a Delaware limited partnership (the “Purchaser”), and John T. Hewitt (“Hewitt”) and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management (the “Hewitt IRA”) (Hewitt and the Hewitt IRA, the “Sellers”). The Purchaser and the Sellers are referred to, each as a “Party,” and collectively as the “Parties.”

Recitals

The Parties originally entered into a Stock Purchase Agreement dated as of July 19, 2018 (the “Prior Agreement”) and now desire to amend and restate the Prior Agreement in its entirety.

Hewitt is the direct registered holder of 1,797,556 shares of Class A Common Stock (including all shares of Class A Common Stock convertible from 200,000 shares of Class B Common Stock owned by Hewitt) of Liberty Tax, Inc., a Delaware corporation with common stock trading on the NASDAQ Global Market under the ticker symbol “TAX” (the “Company”). Hewitt IRA is the direct registered holder of 152,521 shares of Class A Common Stock of the Company. The aforementioned shares constitute all of the outstanding equity interests owned by the Sellers in the Company. 1,564,948 shares of the Class A Common Stock held directly by Hewitt are subject to a pledge agreement in favor of SunTrust Bank (the “Pledged Shares”).

Hewitt now desires and voluntarily agrees to sell all 1,797,556 shares of his Class A Common Stock and Hewitt IRA desires to sell all 152,521 shares of its Class A Common Stock (the “IRA Shares”) to the Purchaser, and the Purchaser desires to purchase the 1,797,556 shares of Class A Common Stock offered by Hewitt and the IRA Shares (altogether, the “Common Shares”) from the Sellers, pursuant to the terms hereof.

Agreement

For good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties agree as follows (references to Sections shall refer to sections of this Agreement, unless otherwise specified):

1. Share Purchase; Purchase Price; Removal and Resignation of Directors.

(a) Subject to the terms set forth herein, Sellers shall sell, deliver, and transfer the Common Shares to the Purchaser as promptly as practicable following the date hereof (such time, the “Effective Date”).

(b) The purchase price for the Common Shares shall be $8.54 per share for an aggregate purchase price of $16,653,657.58 (the “Purchase Price”). Of the Purchase Price, $10,262,054.39 shall be paid directly to Hewitt by way of wire transfer, $5,089,073.85 shall be paid to SunTrust Bank, NA by way of wire transfer to pay off a certain Promissory Note made by Hewitt secured by the Pledged Shares, and $1,302,529.34 shall be paid to Hewitt IRA (the “IRA Shares Purchase Price”). A true and correct copy of the payoff letter for SunTrust Bank is attached hereto as Exhibit A. Notwithstanding anything to the contrary in this Agreement , it is understood that Sellers will receive and are entitled to retain the dividend payments of $0.16 per share that the Company will pay on August 10, 2018.

(c) On the Effective Date, Purchaser will deliver to Sellers, in consideration of the Common Shares, the Purchase Price by wire transfer of immediately available funds, to the account(s) designated by Sellers.

(d) On the Effective Date, Sellers shall transfer the Common Shares to the Purchaser by (i) irrevocably requesting that the Company irrevocably instruct its transfer agent to record such transfer immediately and issue and deliver in book-entry form the Common Shares in the name of the Purchaser; and (ii) directing SunTrust Bank to take all actions necessary to remove its liens on the Pledged Shares and deliver the Pledged Shares to Buyer. Sellers shall deliver to the Purchaser, either directly through the Company or indirectly through its transfer agent, a certified copy of an account statement demonstrating the transfer of the Common Shares to the Purchaser on the Company’s stock ledger in book-entry form (the “Evidence of Stock Ownership”). Purchaser shall be deemed the owner of all the Common Shares from and after the Effective Date and shall be entitled to all rights in respect thereof.

(e) On the Effective Date, Sellers shall cause to be removed from the Company’s Board of Directors, and deliver to Purchaser and the Company executed resignation letters effective as of the Effective Date from the Board of Directors, from each of the following directors of the Company: Gordon D'Angelo, John T. Hewitt, Ellen M. McDowell, Nicole Ossenfort and John Seal. Sellers shall not designate or appoint replacements for such directors.

(f) Notwithstanding anything to the contrary in this Agreement, Hewitt may cause the IRA Shares held by Hewitt IRA to be transferred to him and held directly in his name (the “IRA Transfer”). If the IRA Transfer occurs, the IRA Shares Purchase Price shall not be paid on the Effective Date and shall instead be paid directly to Hewitt no later than one business day after Hewitt delivers to the Purchaser the following (such delivery date, the “IRA Shares Effective Date”): (i) either directly through the Company or indirectly through its transfer agent, a certified copy of an account statement demonstrating the transfer of the IRA Shares to Hewitt on the Company’s stock ledger in book-entry form; and (ii) a certificate duly executed by Hewitt and reasonably satisfactory to the Purchaser stating that (solely with respect to the IRA Shares) the representations and warranties of Hewitt in Section 2 of this Agreement are true and correct as of the IRA Shares Effective Date. No later than one business day after the IRA Shares Effective Date, Purchaser shall deliver to Hewitt, in consideration of the IRA Shares, the IRA Shares Purchase Price by way of wire transfer in accordance with this Agreement. On the IRA Shares Effective Date, Hewitt shall transfer the IRA Shares to the Purchaser by irrevocably requesting that the Company irrevocably instruct its transfer agent to record such transfer immediately and issue and deliver in book-entry form the IRA Shares in the name of the Purchaser. Hewitt shall deliver to the Purchaser, either directly through the Company or indirectly through its transfer agent, the Evidence of Stock Ownership in respect of the IRA Shares. Purchaser shall be deemed the owner of all the IRA Shares from and after the IRA Shares Effective Date and shall be entitled to all rights in respect thereof.

-2-

2. The Sellers’ Representations and Warranties. Assuming the accuracy of the representations, warranties, and agreements of the Purchaser contained in this Agreement, each Seller represents and warrants to the Purchaser, jointly and severally, as of the Effective Date, as follows:

(a) Right, Title, and Interest. The Sellers are the lawful owners of the Common Shares, have good and marketable title to the Common Shares, and have all right, title, and interest in and to the Common Shares. The Sellers have full right and authority to deliver the Common Shares on the Effective Date in connection with this Agreement, subject to the pledge agreement in favor of SunTrust Bank as provided in Section 1(a) hereof. (A) Except as provided in the Recitals Section of this Agreement, the Common Shares are, and (B) upon the payoff of the Promissory Note as contemplated by Section 1 hereof, the Common Shares will be, free and clear of all liens, encumbrances, equities, security interests, rights of first refusal and any other claims whatsoever. Except as set forth in the Company’s Certificate of Incorporation, the Common Shares are not subject to any agreement, understandings, trusts, or other collaborative arrangements or understandings with any other party, including any special rights, preferences or privileges or additional obligations related to voting of the Common Shares or otherwise. No person or entity has any right (including, without limitation, any right of first refusal) to prevent the Sellers from transferring the Common Shares as contemplated by this Agreement, and, except as may be required under applicable federal or state securities laws and any rules or regulations promulgated thereunder or the rules of any securities exchange (collectively, “Securities Laws”), no person or entity has any right to receive notice of the transfer of the Common Shares as contemplated by this Agreement. The Sellers’ delivery of the Common Shares in accordance with the terms of this Agreement will pass full and valid title to the Common Shares free and clear of any security interests, claims, liens, rights of first refusal and any other encumbrance whatsoever. The Sellers are not aware of any basis for any disputes or challenges regarding the Sellers’ ownership of the Common Shares or regarding the Sellers’ sale of the Common Shares to the Purchaser, and no such disputes or challenges are pending or alleged.

(b) Authority. The Sellers have full legal capacity to execute, deliver and perform this Agreement to which it is a party and to consummate the transactions contemplated hereby. The Sellers have sole dispositive and voting authority over the Common Shares, and have all requisite legal authority to execute and deliver this Agreement, to sell and deliver the Common Shares, and to carry out and perform all of Sellers’ obligations under this Agreement. This Agreement has been duly executed and delivered by the Sellers, constitutes the Sellers’ valid and binding obligation, and is enforceable in accordance with its terms. The Sellers have the capacity to act on the Sellers’ own behalf and on behalf of all who might claim through the Sellers to bind them to the terms and conditions of this Agreement. The Sellers have never filed any petition under applicable bankruptcy laws, no such petition has ever been filed involuntarily against the Sellers, no custodian or receiver has ever been appointed with respect to the Sellers’ assets, and the Sellers are not now insolvent (before giving effect to the sale of the Common Shares).

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(c) The execution and delivery by the Sellers of this Agreement, consummation of the transactions contemplated hereby that are required to be performed by the Sellers and compliance with the terms of this Agreement to which the Sellers are a party will not (a) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of the Company or any of its subsidiaries, (b) result in any violation of or default, give rise to a right of termination, cause the forfeiture of any right, or require any notice or consent, under any provision of any material contract to which any Seller, the Company or any of its subsidiaries is a party or by which any Seller, the Company or any of its subsidiaries or its or any of their respective properties is bound or affected, (c) conflict with or violate in any material respect any law applicable to the Company or to any of its subsidiaries or Sellers or by which its or any of their respective properties is bound or affected, or (d) result in the creation of, or require the creation of, any lien upon any shares of capital stock or any property of any Seller, the Company or any of its subsidiaries.

(d) Value of Common Shares. The Sellers acknowledge that, in the future and depending on the success of the Company’s business, the market value of the Common Shares could become worth substantially more than the price at which the Purchaser is purchasing the Common Shares from the Sellers and is securing the Sellers’ other agreements as set forth in this Agreement. THE SELLERS ACKNOWLEDGE THAT, BY SELLING THE COMMON SHARES TO THE PURCHASER PURSUANT TO THIS AGREEMENT, THE SELLERS WILL NOT BENEFIT FROM ANY FUTURE APPRECIATION IN THE MARKET VALUE OF THE COMMON SHARES.

(e) Adequacy of Payment. THE SELLERS AGREE THAT THE AMOUNT OF THE PAYMENT IS FAIR AND EQUITABLE TO THE SELLERS. THE SELLERS ACKNOWLEDGE THAT ARM’S-LENGTH NEGOTIATIONS BETWEEN THE PURCHASER AND THE SELLERS RESULTED IN THE SELLERS AGREEING TO THE SUFFICIENCY OF THE PAYMENT AND TO PERFORM THE SELLERS’ OTHER OBLIGATIONS SET FORTH IN THIS AGREEMENT IN EXCHANGE FOR THE PURCHASER’S PURCHASE OF THE COMMON SHARES.

(f) Consents. Except for filings required under the Securities Exchange Act of 1934 or other applicable Securities Laws, no consent, approval, order, or authorization of, and no registration, qualification, designation, declaration, or filing or notice of or with any governmental authority, regulatory agency, stock exchange or third-party (“Consent”) is required in connection with the Sellers’ sale of the Common Shares to the Purchaser or with the consummation of the transactions contemplated by this Agreement, except for such Consents as have already been made, delivered or obtained.

(g) No Legal, Tax, or Investment Advice. The Sellers have had an opportunity to review the federal, state, local, and foreign tax consequences of the Sellers’ sale of the Common Shares to the Purchaser. The Sellers understand that nothing in this Agreement or in any other materials presented to the Sellers in connection with the Purchaser’s purchase of the Common Shares or the Sellers’ other agreements under this Agreement constitute legal, tax, or investment advice. The Sellers have consulted such legal, tax, and investment advisors as the Sellers, in the Sellers’ sole discretion, have deemed necessary or appropriate in connection with the sale of the Common Shares under this Agreement. THE SELLERS ACKNOWLEDGE THAT THE SELLERS WILL BE RESPONSIBLE FOR THE SELLERS’ OWN TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE SELLERS’ SALE OF THE COMMON SHARES TO THE PURCHASER OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

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(h) No Other Representations or Warranties. Except as expressly set forth in Section 2 of this Agreement, none of Sellers, the Company or any other person has made or makes any other express or implied representation or warranty, written or oral, on behalf of Sellers or the Company, including without limitation any representation or warranty as to the future revenue, profitability or success of the Company.

3. The Purchaser’s Representations and Warranties. The Purchaser represents and warrants to the Sellers, as of the Effective Date, as follows:

(a) The Purchaser has the full right, power, and authority to enter into and perform this Agreement and has, or has access to, capital in an amount that is sufficient to pay the Purchase Price as required by and in accordance with this Agreement.

(b) The Purchaser has not entered into and is not bound by any contract or arrangement of any kind that conflicts with the terms of this Agreement or that might in any way limit, restrict, or impair the transfer of the Common Shares under this Agreement.

(c) The Purchaser acknowledges that, the value of the shares on the date of purchase and in the future may be worth substantially less than the Purchase Consideration.

(d) The Purchaser is (i) an “accredited investor” within the meaning of Rule 501(a)(3) under the United States Securities Act of 1933, as amended (the “Act”), and (ii) a sophisticated and financially capable investor with extensive knowledge and experience in investing in private equity transactions, which enables the Purchaser to properly evaluate the risks and merits of the transactions contemplated by this Agreement, including the purchase by Purchaser of the Common Shares for the Purchase Price (collectively, the “Transaction”), and the Purchaser is entering into the Transaction with a full understanding of all of the terms, conditions and risks and willingly assumes those terms, conditions and risks for an indefinite period of time. The Purchaser has determined, based on its own independent review and such professional advice as it deems appropriate, that the Transaction is consistent with its financial needs, objectives and condition.

(e) The Purchaser acknowledges and agrees (i) that the Sellers or their affiliates may possess material nonpublic information regarding the Company and its condition (financial and otherwise), results of operations, businesses, properties, management, plans and prospects that may impact the value of the Common Shares (the “Company Information”), (ii) the Sellers shall not share and shall have no obligation to share any Company Information with the Purchaser, (iii) the Purchaser is not relying and is specifically disclaiming any reliance on any Company Information in agreeing to this Transaction, and (iv) the Sellers and their affiliates shall have no liability or obligation to the Purchaser or any other person, and the Purchaser hereby waives and releases the Sellers and their affiliates from any claims that they might have against the Sellers or their affiliates, whether under applicable Securities Laws or otherwise, with respect to the nondisclosure of the Company Information.

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(f) The Purchaser is acquiring the Common Shares for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Act, in any manner that would be in violation of the Act. The Purchaser has not, directly or indirectly, offered any Common Shares to anyone or solicited any offer to buy any Common Shares from anyone, so as to bring the offer and sale of any Common Shares within the registration requirements of the Act. The Purchaser will not sell, convey, transfer or offer for sale any of the Common Shares it acquires except upon compliance with the Act and any applicable state securities or “blue sky” laws or pursuant to any exemption therefrom. The Purchaser understands that the Common Shares may not be sold or otherwise disposed of unless such sale or disposition is registered under the Act and applicable state securities laws or such sale or other disposition is exempt from registration thereunder and that such Common Shares will bear a legend to such effect. The Purchaser has received and carefully reviewed the Company’s Annual Report of the Issuer on Form 10-K for the fiscal year ended April 30, 2017 and all subsequent public filings of the Company with the Securities and Exchange Commission, other publicly available information regarding the Company, and such other information that it and its advisers deem necessary to make its decision to enter into the Transaction.

(g) The Purchaser has made its own decision to consummate the Transaction based on its own independent review and consultations with such investment, legal, tax, accounting and other advisers as it deemed necessary. The Purchaser has made its own decision concerning the Transaction without reliance on any representation or warranty of, or advice from, the Sellers (except those explicitly set forth in Sections 2 and 6 hereof).

(h) The Sellers are relying on a “Section 4(1½)” exemption of the Act in connection with the sale and purchase of the Common Shares, and, upon transfer to the Purchaser, such Common Shares will continue to contain certain restrictive legends substantially similar to those set forth on the Common Certificates.

(i) Purchaser hereby acknowledges responsibility for any reporting and filing obligations under Section 13 and 16 of the Securities Exchange Act of 1934 that it is required to make in connection with the purchase of the Common Shares.

(j) The Purchaser is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of organization. The Purchaser has full power and authority or legal capacity, as applicable, to execute, deliver and perform this Agreement to which it is a party and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the performance by Purchaser of the transactions contemplated hereby that are required to be performed by Purchaser have been duly authorized by the partners of Purchaser in accordance with applicable law and the certificate of limited partnership and partnership agreement or other similar organizational documents of the Purchaser, and no other proceedings on the part of the Purchaser are necessary to authorize the execution, delivery and performance of this Agreement. The Purchaser has all requisite legal authority to execute and deliver this Agreement, to purchase the Common Shares, and to carry out and perform all of Purchaser’s obligations under this Agreement. This Agreement has been duly executed and delivered by the Purchaser, constitutes the Purchaser’s valid and binding obligation, and is enforceable in accordance with its terms. The Purchaser has the capacity to act on the Purchaser’s own behalf and on behalf of all who might claim through the Purchaser to bind them to the terms and conditions of this Agreement. The Purchaser has never filed any petition under applicable bankruptcy laws, no such petition has ever been filed involuntarily against the Purchaser, no custodian or receiver has ever been appointed with respect to the Purchaser’s assets, and the Purchaser is not now insolvent (before giving effect to the sale of the Common Shares).

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(k) The Purchaser acknowledges that (i) the Sellers are relying on the Purchaser’s representations, warranties, acknowledgments and agreements in this Agreement as a condition to proceeding with the Transaction; and (ii) without such representations, warranties, and agreements, the Sellers would not enter into this Agreement or engage in the Transaction.

4. Company Not Party. The Purchaser and the Sellers both acknowledge and agree that the Company is not a party to or bound by the terms of this Agreement in any manner and has made no representations or warranties to either the Purchaser or the Sellers or otherwise incurred any obligations in respect of the transactions contemplated by this Agreement. Nothing in this Section 4 shall be construed as imposing any limit, or having any effect, upon the rights of the Purchaser or the Sellers to assert any claims against the Company arising out of the Company’s public statements or filings with the Securities and Exchange Commission or any other Exchange on which the Company’s Common Stock is traded.

5. Cooperation. The Parties will use commercially reasonable efforts to implement and consummate the transactions contemplated by this Agreement. The Parties agree to execute and deliver any further documents or instruments reasonably necessary or desirable to carry out the purposes and intent of this Agreement.

6. Costs. The Parties will each bear their own costs, expert fees, attorneys’ fees, and other fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement.

7. Irrevocable Waiver of Right to Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTION 7 ARE INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF DELAWARE AND OF THE UNITED STATES OF AMERICA.

8. No Representations. Neither Party has relied upon any representations or statements made by the other Party that are not specifically set forth in this Agreement.

9. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws that would result in the application of any law other than the law of the State of Delaware. If either Party shall commence any action, claim, suit, inquiry, notice of violation, proceeding or investigation (collectively, an “Action”), then the prevailing party in such Action shall be reimbursed by the other Party for any and all related costs, charges and expenses, including reasonable attorney’s fees. A Party that successfully moves to dismiss an Action is, without limitation, a prevailing Party. This Section 9 shall survive the expiration or early termination of this Agreement.

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10. Jurisdiction. The Parties agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of such Party’s affiliates or against any party or any of such Party’s affiliates) shall be brought exclusively in any federal or state court in the State of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Action and irrevocably waives, to the fullest extent permitted by law, any objection that such party may now or hereafter have to the laying of the venue of any such Action in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such Action may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such Party as provided hereunder shall be deemed effective service of process on such Party. This Section 10 shall survive the expiration or early termination of this Agreement.

11. Entire Agreement. This Agreement constitutes the full and entire understanding between the Parties with regard to the Common Shares. With respect to the Common Shares, neither Party will be liable or bound to the other Party in any manner by any representations, warranties, or covenants except as specifically set forth in this Agreement.

12. Waivers and Amendments. Either Party’s failure to enforce, or delay in enforcing, any provision of this Agreement will not be construed as a waiver of such provision and will not prevent that Party from subsequently enforcing each and every other provision of this Agreement. The rights granted to the Parties are cumulative and will not constitute a waiver of either Party’s right to assert all other legal and equitable remedies available to that Party. This Agreement may be amended only in writing and only if signed by the Purchaser and the Sellers.

13. Notices. Any notice required or permitted under this Agreement will be given in writing or by electronic mail and will be deemed effectively given (a) upon personal delivery or (b) upon the date of delivery by electronic mail (with proof of delivery) or (c) five (5) Business Days after being mailed by registered or certified mail (postage prepaid, return receipt requested), addressed to the appropriate Party at the electronic mail address or address provided on the signature page of this Agreement or at such other electronic mail address or such other address as such Party may designate by ten days’ advance written notice to the other Party.

14. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be enforceable against the Parties actually executing such counterparts and all of which together will constitute one instrument.

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15. Section Headings. The section headings, titles, and subtitles contained in this Agreement are for convenience only and are not to be relied upon in construing the terms of this Agreement.

16. Severability. If any provision of this Agreement, or the application of any such provision, becomes or is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, then the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties as expressed in this Agreement. The Parties further agree to replace any such illegal, void, or unenforceable provision with a legal, valid, and enforceable substitute provision that will achieve, to the greatest extent possible, the economic, business, and other purposes of the illegal, void, or unenforceable provision.

17. Successors and Assigns. This Agreement and Purchaser’s rights, duties, benefits, and obligations under this Agreement may be assigned, in whole or in part, and will inure to the benefit of, and be enforceable by, the Purchaser’s successors and assigns. This Agreement and the Sellers’ rights, duties, benefits, and obligations under this Agreement will inure to the benefit of, and be enforceable by the Sellers’ successors and assigns.

18. Termination of this Agreement. Nothing herein shall relieve a defaulting or breaching party from any liability or damages arising out of its breach of any provision of this Agreement.

* * *

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The Parties have executed this Amended and Restated Stock Purchase Agreement as of the date listed above.

	PURCHASER:

	Vintage TRIBUTUM LP
	a Delaware limited partnership

	By: its general partner VINTAGE CAPITAL MANAGEMENT, LLC

	By:		/s/ Brian R. Kahn
	Name:		Brian R. Kahn
	Title:		Manager

	Address:
	4705 S. Apopka Vineland Road, Suite 206
	Orlando, Florida 32819

[Signature Page to Amended and Restated Stock Purchase Agreement]

The Parties have executed this Amended and Restated Stock Purchase Agreement as of the date listed above.

	SELLERS:
	John T. Hewitt

	/s/ John T. Hewitt

	Address:
	608 S. Atlantic Avenue
	Virginia Beach, VA 23452


	JOHN T. HEWITT IRA
	Held in the custody of Merrill Lynch Wealth Management

	/s/ John T. Hewitt

	Address:
	6000 Fairview Road
	Charlotte, NC 28210

[Signature Page to Amended and Restated Stock Purchase Agreement]

EXHIBIT “A”

[SUNTRUST LOGO]	Earl McLain, CFP®, ChFC®,110	Tel: 757.624.5451
PRIVATE WEALTH	Senior Vice President	Mobile: 757.504.6137
	Wealth Advisor	Fax: 757.616.0679
	SunTrust Bank	Mail Code: CS-NOR-5013
	Private Wealth Management	150 W. Main Street, 14th Floor
		Norfolk, VA 23510
		NMLS# 501667

July 18, 2018

John T. Hewitt

608 South Atlantic Ave.

Virginia Beach, VA 23451-3616

RE:

Commercial Loan Number 0000187552-26 / 42

Dear Mr. Hewitt:

Per your request, please find below the details of the pay-offs for the above referenced loans:

Loan #1
Borrower	John T. Hewitt
Obligor Number	0000187552-26
Principal	$3,998,982.70
Interest	$25,576.82
Payoff as of 07-31-18	$4,024,559.52
Per Diem	$555.41426

Loan #2
Obligor Number	0000187552-42
Principal	$1,062,500.00
Interest	$2,041.33
Payoff as of 07-31-18	$1,064,514.33
Per Diem	$154.94792

Wiring Instructions for SunTrust Bank
Bank Name	SunTrust Bank
Address	Atlanta, GA
ABA Number	061000104
Account Number	9175001122
Account Name:	CRE SAD Carolinas
Ref:	John T. Hewitt 0000187552-26/42
Attn:	Suzan Jackson 865-560-7253
Street Address:	3620 Six Forks Road 3rd Floor; Raleigh, NC 27609

NOTE: The quoted payoffs shown above are good through 4:00 pm, July 31, 2018. If payment is not received by this deadline, please add the appropriate per diem to each loan. It is acceptable to send one wire transfer for the combined balance of both loan payoffs. If received by the above deadline, the total wire amount will be $5,089,073.85.

Earl McLain is a Registered Representative, SunTrust Investment Services, Inc. (STIS) Investment Adviser Representative. SunTrust Advisory Services, Inc. (STAS)

Investment and Insurance Products:

* Are not FDIC or any other Government Agency Insured • Are not Bank Guaranteed • May Lose Value

SunTrust Private Wealth Management is a marketing name used by SunTrust Bank, SunTrust Banks Trust Company (Cayman) Limited, SunTrust Delaware Trust Company, STIS and STAS, which are each affiliates of SunTrust Banks, Inc. Banking and trust products and services, including investment management products and services, are provided by SunTrust Bank and SunTrust Delaware Trust Company. Securities and insurance (including annuities) are offered by STIS, a SEC registered broker-dealer, member FINRA, SIPC, and a licensed insurance agency. Investment advisory services are offered by STAS, a SEC registered investment adviser.

Page 2

As previously discussed via telephone, SunTrust Bank incurred legal fees associated with the payment resolution of these loans and requires those legal fees to be paid by you. An invoice provided by Moore a Van Allen, PLLC, for those legal fees is enclosed. Please remit payment directly to Moore & Van Allen, PLLC, by wire transfer. Their wire instructions are included with the enclosed invoice.

Upon verification of receipt of funds to satisfy both the loan payoffs to SunTrust Bank and the legal fees payable to Moore a Van Allen, PLLC, SunTrust Bank will release the collateral hold on your Liberty Tax, Inc. (TAX) shares.

if you have any questions, please feel free to contact me at 757-624-5451.

Kind regards,

/s/ Earl McLain
Earl McLain, CFP®, ChFC®, CLU®
Senior Vice President
SunTrust Bank

Copy to: Ellen McDowell
Enclosure (1)

July 16, 2018

	Moore&VanAllen


	Moore & Van Allen PLLC
	Attorneys at Law
SunTrust Bank
731 Cool Springs Blvd.
Franklin, l’N 37067	Suite 4700
Attention: Mr. Samuel Ballesteros	100 North Tryon Street
	Charlotte, NC 28202-4003

	T 704 331 1000
	F 704 331 1159
	www.mvalaw.com

	Re:	John T. Hewitt
		Our File No.: 410643.000271

BILLING SUMMARY:

Moore & Van Allen fees incurred through June 30, 2018

$2,819.20

Various conferences with client regarding status of credit. Work on review of loan agreements for revolving loan and term loan along with other loan documents for credit facilities. Analysis regarding verification of collateral interests.

TOTAL AMOUNT OF THIS INVOICE

$2,819.20

Moore & Van Allen PLLC

Wiring Instructions

Account Name: Moore & Van Alien PLLC - Operating Account

Bank: Bank of America, Charlotte, NC

Account #: 000001588755

ABA #: 026009593

Contact Attorney: Trey Rayburn.

Client/Matter #: 410643.000271

EX-99.3 3 tv499596_ex99-3.htm EXHIBIT 3

Exhibit 3

AMENDED AND RESTATED STOCK PURCHASE AGREEMENT

This Amended and Restated Stock Purchase Agreement (this “Agreement”) is entered into as of July 30, 2018 by and between Vintage Tributum LP, a Delaware limited partnership (the “Purchaser”), and Datatax Business Services Limited (“Datatax”), 714718 Alberta, Ltd. (“Alberta”) and Steven Ibbotson (“Ibbotson”) (Datatax, Alberta and Ibbotson, the “Sellers”). The Purchaser and the Sellers are referred to, each as a “Party,” and collectively as the “Parties.”

Recitals

Datatax is the direct registered holder of 3,000,000 shares of Class A Common Stock of Liberty Tax, Inc., a Delaware corporation with common stock trading on the NASDAQ Global Market under the ticker symbol “TAX” (the “Company” and, such shares, the “Datatax Shares”). Alberta is the direct registered holder of 8,400 shares of Class A Common Stock of the Company (the “Alberta Shares”). Ibbotson is the direct registered holder of 95,137 shares of Class A Common Stock of the Company (the “Ibbotson Shares” and together with the Datatax Shares and the Alberta Shares, the “Common Shares”). The Common Shares constitute all of the outstanding equity interests owned by the Sellers in the Company. All of the Datatax Shares are subject to a securities pledge agreement in favor of Bank of Montreal (the “Pledged Shares” and, such agreement, the “Pledge Agreement”).

Datatax now desires and voluntarily agrees to sell all 3,000,000 of its Common Shares to the Purchaser, Alberta desires to sell all 8,400 of its Common Shares to the Purchaser and Ibbotson desires to sell all 95,137 of his Common Shares to the Purchaser, and the Purchaser desires to purchase the 3,000,000 Common Shares offered by Datatax, the 8,400 Common Shares offered by Alberta and the 95,137 Common Shares offered by Ibbotson from the Sellers, pursuant to the terms hereof.

Agreement

1. Share Purchase; Purchase Price.

(b) The purchase price for the Common Shares shall be $8.54 per share for an aggregate purchase price of $26,504,205.98 (the “Purchase Price”). Of the Purchase Price, $25,691,736 shall be paid to Bank of Montreal to satisfy certain obligations of Datatax secured by the Pledged Shares and $812,469.98 shall be paid to Ibbotson. Notwithstanding anything to the contrary in this Agreement, it is understood that Sellers will receive and are entitled to retain the dividend payments of $0.16 per share that the Company will pay on August 10, 2018.

(c) On the Effective Date, Purchaser will deliver to Bank of Montreal and Ibbotson, in consideration of the Common Shares, the Purchase Price by wire transfer of immediately available funds, to the account(s) designated by Sellers.

(d) On the Effective Date, Sellers shall transfer the Common Shares to the Purchaser by (i) irrevocably requesting that the Company irrevocably instruct its transfer agent to record such transfer immediately and issue and deliver in book-entry form the Common Shares in the name of the Purchaser and (ii) directing Bank of Montreal to take all actions necessary to remove its liens on the Pledged Shares and deliver the Pledged Shares to Purchaser. Sellers shall deliver to the Purchaser, either directly through the Company or indirectly through its transfer agent, a certified copy of an account statement demonstrating the transfer of the Common Shares to the Purchaser on the Company’s stock ledger in book-entry form (the “Evidence of Stock Ownership”). Purchaser shall be deemed the owner of all the Common Shares from and after the Effective Date and shall be entitled to all rights in respect thereof.

2. The Sellers’ Representations and Warranties. Assuming the accuracy of the representations, warranties and agreements of the Purchaser contained in this Agreement, each Seller represents and warrants to the Purchaser, jointly and severally, as of the Effective Date, as follows:

(a) Right, Title, and Interest. Except as provided in the Pledge Agreement, the Sellers are the lawful owners of the Common Shares, have good and marketable title to the Common Shares, and have all right, title, and interest in and to the Common Shares. The Sellers have full right and authority to deliver the Common Shares on the Effective Date in connection with this Agreement. Except as provided in the Pledge Agreement, the Common Shares are, and upon satisfaction of Datatax’s obligations pursuant to the Pledge Agreement as contemplated in Section 1 hereof, the Common Shares will be, free and clear of all liens, encumbrances, equities, security interests, rights of first refusal and any other claims whatsoever. Except as set forth in the Company’s Certificate of Incorporation, the Common Shares are not subject to any agreement, understandings, trusts, or other collaborative arrangements or understandings with any other party, including any special rights, preferences or privileges or additional obligations related to voting of the Common Shares or otherwise. No person or entity has any right (including, without limitation, any right of first refusal) to prevent the Sellers from transferring the Common Shares as contemplated by this Agreement, and, except as may be required under the Pledge Agreement and applicable federal or state securities laws and any rules or regulations promulgated thereunder or the rules of any securities exchange (collectively, “Securities Laws”), no person or entity has any right to receive notice of the transfer of the Common Shares as contemplated by this Agreement. The Sellers’ delivery of the Common Shares in accordance with the terms of this Agreement will pass full and valid title to the Common Shares free and clear of any security interests, claims, liens, rights of first refusal and any other encumbrance whatsoever. The Sellers are not aware of any basis for any disputes or challenges regarding the Sellers’ ownership of the Common Shares or regarding the Sellers’ sale of the Common Shares to the Purchaser, and no such disputes or challenges are pending or alleged.

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(c) The execution and delivery by the Sellers of this Agreement, consummation of the transactions contemplated hereby that are required to be performed by the Sellers and compliance with the terms of this Agreement to which the Sellers are a party will not (a) conflict with or violate any provision of the certificate of incorporation, bylaws or similar organizational documents of the Sellers, (b) result in any violation of or default, give rise to a right of termination, cause the forfeiture of any right, or require any notice or consent (other than as provided in the Pledge Agreement), under any provision of any material contract to which any Seller is a party or by which any Seller or its properties is bound or affected, (c) conflict with or violate in any material respect any law applicable to the Sellers or by which any of their respective properties is bound or affected, or (d) result in the creation of, or require the creation of, any lien upon any shares of capital stock or any property of any Seller.

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(g) No Legal, Tax, or Investment Advice. The Sellers have had an opportunity to review the federal, state, local, and foreign tax consequences of the Sellers’ sale of the Common Shares to the Purchaser. The Sellers understands that nothing in this Agreement or in any other materials presented to the Sellers in connection with the Purchaser’s purchase of the Common Shares or the Sellers’ other agreements under this Agreement constitutes legal, tax, or investment advice. The Sellers have consulted such legal, tax, and investment advisors as the Sellers, in the Sellers’ sole discretion, have deemed necessary or appropriate in connection with the sale of the Common Shares under this Agreement. THE SELLERS ACKNOWLEDGE THAT THE SELLERS WILL BE RESPONSIBLE FOR THE SELLERS’ OWN TAX LIABILITY THAT MAY ARISE AS A RESULT OF THE SELLERS’ SALE OF THE COMMON SHARES TO THE PURCHASER OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

3. The Purchaser’s Representations and Warranties. The Purchaser represents and warrants to the Sellers, as of the Effective Date, as follows:

(c) The Purchaser acknowledges that, the value of the shares on the date of purchase and in the future may be worth substantially less than the Purchase Consideration.

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(f) The Purchaser is acquiring the Common Shares for its own account and not with a view to their distribution within the meaning of Section 2(11) of the Act, in any manner that would be in violation of the Act. The Purchaser has not, directly or indirectly, offered any Common Shares to anyone or solicited any offer to buy any Common Shares from anyone, so as to bring the offer and sale of any Common Shares within the registration requirements of the Act. The Purchaser will not sell, convey, transfer or offer for sale any of the Common Shares it acquires except upon compliance with the Act and any applicable state securities or “blue sky” laws or pursuant to any exemption therefrom. The Purchaser understands that certain of the Common Shares may not be sold or otherwise disposed of unless such sale or disposition is registered under the Act and applicable state securities laws or such sale or other disposition is exempt from registration thereunder and that such Common Shares will bear a legend to such effect. The Purchaser has received and carefully reviewed the Company’s Annual Report of the Issuer on Form 10-K for the fiscal year ended April 30, 2017 and all subsequent public filings of the Company with the Securities and Exchange Commission, other publicly available information regarding the Company, and such other information that it and its advisers deem necessary to make its decision to enter into the Transaction.

(h) The Sellers are relying on a “Section 4(1½)” exemption of the Act in connection with the sale and purchase of certain of the Common Shares, and, upon transfer to the Purchaser, such Common Shares will continue to contain certain restrictive legends substantially similar to those set forth on the Common Certificates.

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8. No Representations. Neither Party has relied upon any representations or statements made by the other Party that are not specifically set forth in this Agreement.

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15. Section Headings. The section headings, titles, and subtitles contained in this Agreement are for convenience only and are not to be relied upon in construing the terms of this Agreement.

18. Termination of this Agreement. Nothing herein shall relieve a defaulting or breaching party from any liability or damages arising out of its breach of any provision of this Agreement.

* * *

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The Parties have executed this Amended and Restated Stock Purchase Agreement as of the date listed above.

	PURCHASER:

	Vintage TRIBUTUM LP
	a Delaware limited partnership


	By: its general partner VINTAGE CAPITAL MANAGEMENT, LLC


	By:		/s/ Brian R. Kahn
	Name:		Brian R. Kahn
	Title:		Manager

	Address:
	4705 S. Apopka Vineland Road, Suite 206
	Orlando, Florida 32819

[Signature Page to Amended and Restated Stock Purchase Agreement]

	SELLERS:

	DATATAX BUSINESS SERVICES LIMITED


	By:		/s/ Steven Ibbotson
	Name:		Steven Ibbotson
	Title:		President
	Address:
	150 3015 5th Ave N.E. Calgary AB
	T2A 6T8


	714718 ALBERTA, LTD.


	By:		/s/ Steven Ibbotson
	Name:		Steven Ibbotson
	Title:		President
	Address:
	150, 3015 5th Ave N.E. Calgary AB
	T2A 6T8


	STEVEN IBBOTSON


	/s/ Steven Ibbotson

	Address:
	203 Eagle Pt, Canmore
	AB T1W 3E6

[Signature Page to Amended and Restated Stock Purchase Agreement]

EX-99.4 4 tv499596_ex99-4.htm EXHIBIT 4

Exhibit 4

VOTING AGREEMENT

THIS VOTING AGREEMENT (this “Agreement”) is made and entered into as of [●], 2018, by and between Vintage Tributum LP, a Delaware limited partnership (“Purchaser”) and the undersigned equity holder (the “Stockholder”) of Liberty Tax, Inc. (the “Company”). Purchaser and the Stockholder are referred to together as the “Parties.”

RECITALS

A. Purchaser (together with its designees), through one or more purchases of the capital stock of the Company, intends to make a substantial investment in the Company through the purchase of shares of capital stock of the Company from John Hewitt and Steve Ibbotson and related entities (the “Investment”).

B. Stockholder is the Beneficial Owner (as defined below) of that number of shares of the Company’s capital stock as set forth on the signature page of this Agreement.

C. In consideration of Purchaser’s agreement to undertake the Investment, the Stockholder, in such Stockholder’s capacity as such, has, at the request of Purchaser, agreed, subject to the terms and conditions set forth in this Agreement, to vote the Shares (as defined below).

AGREEMENT

The Parties therefore agree as follows:

1. Certain Definitions. For all purposes of and under this Agreement, the following terms have the following meanings:

(a) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

(b) “Beneficially Own,” “Beneficial Ownership” or “Beneficially Owned,” with respect to any securities, means having “beneficial ownership” of such securities as determined pursuant to Rule 13d-3 promulgated under the Exchange Act, including pursuant to any contract or agreement. A “Beneficial Owner” is a Person who Beneficially Owns securities.

(c) “Expiration Date” means the earliest to occur of (i) three months after the consummation of the Investment; and (ii) the written agreement of the Parties to terminate this Agreement, or (iii) the election of the Nominees (as defined below) to the Board of Directors.

(d) “Person” means any natural person, firm, corporation, partnership, company, limited liability company, trust, joint venture, association, governmental authority or other entity.

(e) “Shares” means all (i) shares of capital stock of the Company that are Beneficially Owned by the Stockholder as of the date of this Agreement, and (ii) all additional shares of capital stock of the Company with respect to which the Stockholder acquires Beneficial Ownership during the period commencing with the execution and delivery of this Agreement until the Expiration Date.

(f) A Person will be deemed to have effected a “Transfer” of a security if such Person, directly or indirectly, (i) sells, pledges, encumbers, grants an option with respect to, transfers or otherwise disposes of such security or any interest therein (other than in connection any agreements with Purchaser); or (ii) enters into an agreement or commitment providing for the sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein (other than in connection any agreements with Purchaser).

2. Transfer of Shares; Other Actions.

(a) No Transfer of Shares. The Stockholder agrees that, at all times during the period commencing with the execution and delivery of this Agreement until the Expiration Date, the Stockholder will not, and will not cause or permit any of its Affiliates to, Transfer any of the Shares; provided, however, that nothing contained herein will be deemed to restrict the ability of the Stockholder or any of its Affiliates to (i) convert any shares of the Company’s preferred stock into shares of the Company’s common stock; or (ii) exercise any stock options or warrants relating to the capital stock of the Company.

(b) No Transfer of Voting Rights. The Stockholder hereby agrees that, at all times commencing with the execution and delivery of this Agreement until the Expiration Date, the Stockholder will not, and will cause its Affiliates not to, (i) deposit, or permit the deposit of, any Shares into a voting trust; (ii) grant any proxy or power of attorney in respect of the Shares; or (iii) enter into any voting agreement or similar contract (other than this Agreement) to vote, consent or give instructions with respect to any Shares in contravention of the obligations of the Stockholder under this Agreement.

(c) Other Actions. Commencing with the execution and delivery of this Agreement until the Expiration Date, the Stockholder will not, and will causes its Affiliates not to, directly or indirectly, take any action that would make any representation or warranty contained herein untrue or incorrect or have the effect of impairing the ability of the Stockholder to perform its obligations under this Agreement.

3. Agreement to Vote Shares.

(a) Voting Commitment. Until the Expiration Date, at every meeting of the Company’s stockholders (however called) and at every adjournment or postponement thereof, and on every action or approval by written consent of the Company’s stockholders, the Stockholder will vote or consent, or cause to be voted or consented, all of the Shares:

(i) in favor of the election to the Company’s board of directors of Matt Avril, Brian Kahn, Andy Laurence, Bryant Riley and Brent Turner (the “Nominees”) for election to the Company’s board of directors; and

(ii) except as otherwise agreed by Purchaser, against any other nominee for election to the Company’s board of directors.

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(b) Presence for Quorum Purposes. In the event that a meeting of the Company’s stockholders is held, the Stockholder will, or will cause the holder of record on any applicable record date to, appear at such meeting or otherwise cause the Shares to be counted as present thereat for purposes of establishing a quorum.

4. Representations and Warranties of Purchaser. Purchaser represents and warrants to the Stockholder as follows:

(a) Power; Binding Agreement. Purchaser has full power, capacity and authority to execute and deliver this Agreement, to perform Purchaser’s obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Purchaser and no other actions or proceedings on the part of Purchaser are necessary to authorize the execution and delivery by it of this Agreement, the performance by Purchaser of its obligations hereunder or the consummation by Purchaser of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Purchaser, and, assuming that this Agreement constitutes a valid and binding obligation of the Stockholder, constitutes a valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as the such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally and subject to general principles of equity.

(b) No Conflicts. Other than any filings under the Exchange Act, no filing with, and no permit, authorization, consent or approval of, any governmental authority is necessary for the execution by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder, and the consummation by Purchaser of the transactions contemplated hereby. None of the execution and delivery Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder or the consummation by Purchaser of the transactions contemplated hereby will (i) conflict with or result in any breach of any organizational documents applicable to Purchaser; (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under, any of the terms, conditions or provisions of any contract or other obligation of any kind to which Purchaser is a party or by which Purchaser or any of its properties or assets may be bound; or (iii) violate any law applicable to Purchaser or any of its properties or assets, except for such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, prevent or delay Purchaser from performing its obligations under this Agreement.

5. Representations and Warranties of the Stockholder. The Stockholder represents and warrants to Purchaser as follows:

(a) Power; Binding Agreement. The Stockholder has full power, capacity and authority to execute and deliver this Agreement, to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Stockholder of this Agreement, the performance by the Stockholder of his, her or its obligations hereunder and the consummation by the Stockholder of the transactions contemplated hereby have been duly and validly authorized by all necessary action, if any, on the part of the Stockholder and no other actions or proceedings on the part of the Stockholder are necessary to authorize the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of his, her or its obligations hereunder or the consummation by the Stockholder of the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Stockholder, and, assuming that this Agreement constitutes a valid and binding obligation of Purchaser, constitutes a valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as the such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally and subject to general principles of equity.

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(b) No Conflicts. Other than any filings under the Exchange Act, no filing with, and no permit, authorization, consent or approval of, any governmental authority is necessary for the execution by the Stockholder of this Agreement, the performance by the Stockholder of his, her or its obligations hereunder, and the consummation by the Stockholder of the transactions contemplated hereby. None of the execution and delivery by the Stockholder of this Agreement, the performance by the Stockholder of his, her or its obligations hereunder or the consummation by the Stockholder of the transactions contemplated hereby will (i) conflict with or result in any breach of any organizational documents applicable to the Stockholder; (ii) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under, any of the terms, conditions or provisions of any contract or other obligation of any kind to which the Stockholder is a party or by which the Stockholder or any of the Stockholder’s properties or assets may be bound; or (iii) violate any law applicable to the Stockholder or any of the Stockholder’s properties or assets, except for such conflicts, breaches, violations or defaults that would not, individually or in the aggregate, prevent or delay the Stockholder from performing his, her or its obligations under this Agreement.

(c) Ownership of Shares. The Stockholder (i) is the Beneficial Owner of that number of Shares indicated on the signature page of this Agreement, all of which are held free and clear of any liens, pledges, options, rights of first refusal, co-sale rights, agreements, limitations on the Stockholder’s voting rights and other encumbrances of any nature (collectively, “Liens”) (except for any Liens arising hereunder); and (ii) as of the date hereof, does not own, beneficially or otherwise, any Shares other than as indicated on the signature page of this Agreement. The Shares are, and will be at all times up until the Expiration Date be, held free and clear of any Liens.

(d) Voting Power. The Stockholder has sole voting power, sole power of disposition, sole power to issue instructions with respect to the matters set forth herein and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and the terms of this Agreement.

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6. Further Assurances. Subject to the terms and conditions of this Agreement, until the Expiration Date, the Stockholder will use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to fulfill the Stockholder’s obligations under this Agreement.

7. Termination. This Agreement will automatically terminate and shall have no further force or effect as of the Expiration Date. Notwithstanding the foregoing, nothing set forth in this Section 7 or elsewhere in this Agreement shall relieve any Party from any liability, or otherwise limit the liability of any Party, for any breach of this Agreement.

8. Miscellaneous.

(a) Waiver. At any time and from time to time, any Party may, to the extent legally allowed and except as otherwise set forth herein, (i) extend the time for the performance of any of the obligations or other acts of the other Party; (ii) waive any inaccuracies in the representations and warranties made to such Party contained herein or in any document delivered pursuant hereto; and (iii) waive compliance with any of the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. Any delay in exercising any right under this Agreement shall not constitute a waiver of such right.

(b) Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

(c) Notices. All notices, requests, demands and other communications hereunder shall be in writing and be in writing and shall be deemed to have been given (i) when delivered personally; (ii) the next business day, if sent by a nationally-recognized overnight delivery service (unless the records of the delivery service indicate otherwise); (iii) three business days after deposit in the United States mail, certified and with proper postage prepaid, addressed as follows; or (iv) upon delivery if sent by electronic mail:

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if to Purchaser, to:

Vintage Tributum LP
c/o Vintage Capital Management, LLC
4705 S. Apopka Vineland Road, Suite 206
Orlando, FL 32819
Attn: Brian R. Kahn
Email: bkahn@vintcap.com

with a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304

Attn:

Bradley L. Finkelstein

Douglas K. Schnell

Email:

bfinkelstein@wsgr.com, dschnell@wsgr.com

If to the Stockholder, to: the address for notice set forth on the signature page hereto.

Any Party or other recipient may from time to time change its address for purposes of this Agreement by giving notice of such change as provided herein.

(d) Rules of Construction. The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any law providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.

(e) Interpretation.

(i) Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”

(ii) The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

(iii) The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.

(iv) The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.

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(v) A reference to any Party to this Agreement or any other agreement or document shall include such Party’s successors and permitted assigns.

(f) No Third Party Beneficiaries. This Agreement is not intended to confer upon any Person other than the Parties any rights or remedies hereunder.

(g) Entire Agreement; Assignment; Death or Incapacity. This Agreement and the documents and instruments and other agreements among the Parties (i) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof; (ii) are not intended to confer upon any other Person any rights or remedies hereunder; and (iii) shall not be assigned by operation of law or otherwise; provided, however, that Purchaser may assign its rights and delegate its obligations hereunder or thereunder to any of its Affiliates so long as Purchaser remains ultimately liable for all of Purchaser’s obligations hereunder and thereunder. If applicable, all authority conferred herein shall survive the death or incapacity of the Stockholder and in the event of the Stockholder’s death or incapacity, any obligation of the Stockholder hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the Stockholder.

(h) Amendments. This Agreement may not be modified, amended, altered or supplemented except by the execution and delivery of a written agreement executed by each of the Parties.

(i) Specific Performance; Injunctive Relief. The each Party acknowledges that the other Party will be irreparably harmed and that there is no adequate remedy at law for a violation of any of the covenants or agreements of the other Party set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to a Party upon any such violation, each Party will have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to such Party at law or in equity (without proof of damages) and each Party waives any requirement for the security or posting of any bond in connection with such enforcement.

(j) Other Remedies. Except as otherwise set forth herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.

(k) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.

(l) Expenses. All costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring the expenses.

(m) Counterparts. This Agreement may be executed in two or more counterparts and by the different Parties on separate counterparts, each of which when so executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a fax machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent that such defense relates to lack of authenticity.

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(n) WAIVER OF JURY TRIAL. EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

[Signature page follows.]

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as of the date first written above.

	VINTAGE TRIBUTUM LP

	By: its general partner
	VINTAGE CAPITAL MANAGEMENT, LLC


	By:
		Name:
		Title:

	[STOCKHOLDER]


	By:
	Name:
	Title:

	Address:

Email:

	Shares Beneficially Owned:

	_____ shares of common stock

	[other securities]

[Signature Page to Voting Agreement]

EX-99.5 5 tv499596_ex99-5.htm EXHIBIT 5

Exhibit 5

AGREEMENT

This Agreement, dated July 19, 2018 (this “Agreement”), is by and between Liberty Tax, Inc., a Delaware corporation (the “Company”), and Vintage Tributum LP, a Delaware limited partnership (“Vintage”) (each of the Company and Vintage, a “Party” to this Agreement, and collectively, the “Parties”).

RECITALS

WHEREAS, Vintage is entering into that certain Stock Purchase Agreement (the “Purchase Agreement”), dated as of even date herewith, with John T. Hewitt (“Hewitt”) and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management (the “Hewitt IRA”) pursuant to which Vintage (together with its designees) is purchasing (i) all of the shares of the Company’s Class A Common Stock held by Hewitt and the Hewitt IRA, and (ii) 200,000 shares of the Company’s Class B Common Stock (the “Class B Common Shares”) from Hewitt, which Class B Common Shares constituted all of the outstanding shares of the Company’s Class B Common Stock;

WHEREAS, prior to the date of the Purchase Agreement, the number of members of the Company’s Board of Directors (the “Board”) was fixed at nine (9) and consisted of four (4) directors elected by the holders of the Company’s Class A Common Stock and five (5) directors (the “Class B Director Designees”) elected by Hewitt, as the sole holder of the Company’s Class B Common Stock;

WHEREAS, pursuant to the Purchase Agreement and effective as of the closing of the transactions contemplated thereby (the “Closing”), Hewitt and the Hewitt IRA are either (i) removing the Class B Director Designees from the Board or (ii) causing the Class B Director Designees to deliver to Vintage and the Company executed resignation letters effective as of the Closing (the “Removal”), in either case, resulting in five (5) vacancies on the Board;

WHEREAS, effective as of the Removal, the Board is fixing the number of members of the Board at five (5) directors, consisting of one (1) vacancy;

WHEREAS, effective as of the Closing, all of the Class B Common Shares are converting into shares of the Company’s Class A Common Stock (the “Conversion”), such that, effective as of the Closing, no shares of the Company’s Class B Common Stock remain outstanding;

WHEREAS, in connection with the Purchase Agreement and in light of the Conversion, Vintage has requested that the size of the Board be increased to nine (9) directors, consisting of five (5) vacancies to be filled at a later date by the affirmative vote of at least a majority of the outstanding shares of the Company’s Class A Common Stock, and Vintage indicated its intent to act by written consent to fill such vacancies (the “Written Consent of Stockholders”); and

WHEREAS, the Company and Vintage have determined to come to an agreement with respect to certain Board matters as provided herein.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

1. Board Matters.

(a) The Company hereby agrees that the Board shall take all necessary action (including adopting by unanimous written consent resolutions of the Board in substantially the form attached hereto as Exhibit A (as so adopted, the “Board Consent”)) to increase the size of the Board to nine (9) directors consisting of five (5) vacancies, effective on the date immediately prior to the effective date of the Written Consent of Stockholders (the “Director Vacancies”); provided, however, that the Board Consent shall become void and be of no further force and effect, and the Company shall have no further obligations under this Section 1(a), to the extent that the Written Consent of Stockholders has not become effective on or before the 60th day after the date hereof.

(b) Vintage hereby agrees that at least three (3) of the individuals elected to fill the Director Vacancies pursuant to the Written Consent of Stockholders will, in Vintage’s reasonable judgment, meet the standards necessary for the Board to reasonably determine they are “independent” for purposes of the Nasdaq listing rules.

2. Representations and Warranties of the Company. The Company represents and warrants to Vintage that this Agreement has been duly authorized, executed and delivered by the Company, and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

3. Representations and Warranties of Vintage. Vintage represents and warrants to the Company that this Agreement has been duly authorized, executed and delivered by Vintage, and is a valid and binding obligation of Vintage, enforceable against Vintage in accordance with its terms.

4. Cooperation. The Parties will use commercially reasonable efforts to implement and consummate the transactions contemplated by this Agreement. The Parties agree to execute and deliver any further documents or instruments reasonably necessary or desirable to carry out the purposes and intent of this Agreement.

5. Costs. The Parties will each bear their own costs, expert fees, attorneys’ fees, and other fees and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement.

6. Irrevocable Waiver of Right to Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT THE WAIVERS IN THIS SECTION 6 ARE INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF THE STATE OF DELAWARE AND OF THE UNITED STATES OF AMERICA.

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7. No Representations. Neither Party has relied upon any representations or statements made by the other Party that are not specifically set forth in this Agreement.

8. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws that would result in the application of any law other than the law of the State of Delaware. This Section 8 shall survive the expiration or early termination of this Agreement.

9. Jurisdiction. The Parties agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of such Party’s affiliates or against any party or any of such Party’s affiliates) shall be brought exclusively in any federal or state court in the State of Delaware, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such Action and irrevocably waives, to the fullest extent permitted by law, any objection that such party may now or hereafter have to the laying of the venue of any such Action in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such Action may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such Party as provided hereunder shall be deemed effective service of process on such Party. This Section 9 shall survive the expiration or early termination of this Agreement.

10. Entire Agreement. This Agreement constitutes the full and entire understanding between the Parties with regard to the subject matter hereof.

11. Waivers and Amendments. Either Party’s failure to enforce, or delay in enforcing, any provision of this Agreement will not be construed as a waiver of such provision and will not prevent that Party from subsequently enforcing each and every other provision of this Agreement. The rights granted to the Parties are cumulative and will not constitute a waiver of either Party’s right to assert all other legal and equitable remedies available to that Party. This Agreement may be amended only in writing and only if signed by the Purchaser and the Sellers.

12. Notices. Any notice required or permitted under this Agreement will be given in writing or by electronic mail and will be deemed effectively given (a) upon personal delivery or (b) upon the date of delivery by electronic mail (with proof of delivery) or (c) five (5) Business Days after being mailed by registered or certified mail (postage prepaid, return receipt requested), addressed to the appropriate Party at the electronic mail address or address provided on the signature page of this Agreement or at such other electronic mail address or such other address as such Party may designate by ten days’ advance written notice to the other Party.

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13. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be enforceable against the Parties actually executing such counterparts and all of which together will constitute one instrument.

14. Section Headings. The section headings, titles, and subtitles contained in this Agreement are for convenience only and are not to be relied upon in construing the terms of this Agreement.

15. Severability. If any provision of this Agreement, or the application of any such provision, becomes or is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, then the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties as expressed in this Agreement. The Parties further agree to replace any such illegal, void, or unenforceable provision with a legal, valid, and enforceable substitute provision that will achieve, to the greatest extent possible, the economic, business, and other purposes of the illegal, void, or unenforceable provision.

16. No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Company and Vintage and is not enforceable by any other persons.

17. Termination of this Agreement. Nothing herein shall relieve a defaulting or breaching party from any liability or damages arising out of its breach of any provision of this Agreement.

[The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized signatories of the Parties as of the date hereof.

LIBERTY TAX, INC.

a Delaware corporation

By:		/s/ Michael S. Piper

Name:		Michael S. Piper

Title:		Vice President & CFO
Address:		1716 Corporate Landing Parkway
		Virginia Beach, VA 23454

	VINTAGE TRIBUTUM LP
	a Delaware limited partnership

	By: its general partner
	VINTAGE CAPITAL MANAGEMENT, LLC


	By:		/s/ Brian R. Kahn

	Name:		Brian R. Kahn

	Title:		Manager

	Address:
	4705 S. Apopka Vineland Road, Suite 206
	Orlando, Florida 32819

[Signature Page to Agreement]

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EXHIBIT A

Form of Unanimous Written Consent of the Board of Directors

UNANIMOUS WRITTEN CONSENT OF

THE BOARD OF DIRECTORS OF

LIBERTY TAX, INC.

July [__], 2018

Pursuant to Section 141(f) of the Delaware General Corporation Law, the undersigned, being all of the members of the Board of Directors (the “Board”) of Liberty Tax, Inc., a Delaware corporation (the “Corporation”), hereby consent to, approve and adopt the following resolutions, effective as of 5:00 p.m. on the above date, which actions shall have the same force and effect as if taken by unanimous affirmative vote at a meeting of the Board duly called and held, and direct that this consent to such actions be filed with the minutes of the proceedings of the Board:

WHEREAS, Vintage Tributum LP, a Delaware limited partnership (“Vintage”), is entering into that certain Stock Purchase Agreement (the “Purchase Agreement”), dated as of July 19, 2018, with John T. Hewitt (“Hewitt”) and the John T. Hewitt IRA held in the custody of Merrill Lynch Wealth Management (the “Hewitt IRA”) pursuant to which Vintage (together with its designees) is purchasing (i) all of the shares of the Corporation’s Class A Common Stock held by Hewitt and the Hewitt IRA and (ii) 200,000 shares of the Corporation’s Class B Common Stock (the “Class B Common Shares”) from Hewitt, which Class B Common Shares constituted all of the outstanding shares of the Corporation’s Class B Common Stock;

WHEREAS, prior to the date of the Purchase Agreement, the number of members of the Board was fixed at nine (9) and consisted of four (4) directors elected by the holders of the Corporation’s Class A Common Stock and five (5) directors (the “Class B Director Designees”) elected by Hewitt, as the sole holder of the Corporation’s Class B Common Stock;

WHEREAS, pursuant to the Purchase Agreement and effective as of the closing of the transactions contemplated thereby (the “Closing”), Hewitt and the Hewitt IRA are either (i) removing the Class B Director Designees from the Board or (ii) causing the Class B Director Designees to deliver to Vintage and the Corporation executed resignation letters effective as of the Closing (the “Removal”), in either case, resulting in five (5) vacancies on the Board;

WHEREAS, effective as of the Removal, the Board is fixing the number of members of the Board at five (5) directors, consisting of one (1) vacancy;

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WHEREAS, in connection with the Purchase Agreement and in light of the Conversion, Vintage has requested that the size of the Board be increased to nine (9) directors, consisting of five (5) vacancies to be filled at a later date by the affirmative vote of at least a majority of the outstanding shares of the Corporation’s Class A Common Stock, and Vintage indicated its intent to act by written consent to fill such vacancies (the “Written Consent of Stockholders”); and

WHEREAS, in connection with the Purchase Agreement and other matters, the Corporation entered into that certain Agreement, dated as of July 19, 2018, with Vintage (the “Agreement”), pursuant to which the Corporation agreed, among other things, that the Board shall take all necessary action (including by adopting this Unanimous Written Consent of the Board) to increase the size of the Board to nine (9) directors consisting of five (5) vacancies, effective on the date immediately prior to the effective date of the Written Consent of Stockholders; provided, however, that this Unanimous Written Consent of the Board shall become void and be of no further force and effect, and the Company shall have no further obligations under Section 1(a) of the Agreement, to the extent that the Written Consent of Stockholders has not become effective on or before the 60th day after the date of the Agreement.

Fix the Number of Directors

RESOLVED, that pursuant to Article V, Section 2 of the Amended and Restated Certificate of Incorporation of the Corporation, the number of directors of the Corporation shall hereby be fixed at nine (9) effective immediately prior to the effective time of the Written Consent of Stockholders; provided, however, that this Unanimous Written Consent of the Board shall become void and be of no further force and effect to the extent that the Written Consent of Stockholders has not become effective on or before the 60th day after the date of the Agreement.

General Ratification and Authorization Matters

RESOLVED, that all actions taken and all agreements, instruments, reports, applications, certifications, affidavits and documents executed, delivered or filed through the date hereof by any officer, in the name and on behalf of the Corporation in connection with the foregoing resolutions and the other matters contemplated thereby, hereby are approved, ratified and confirmed in all respects.

RESOLVED, that, consistent with the foregoing resolutions, the officers of the Corporation are, and each acting alone hereby is, authorized and directed, in the name and on behalf of the Corporation, to execute, deliver and file such instruments, SEC filings, and other documents and agreements and to take such other actions as such officer or officers shall determine to be necessary or appropriate in order to effectuate the foregoing resolutions or otherwise in connection with the subject matter of these resolutions and the transactions contemplated thereby (such determination to be conclusively, but not exclusively, evidenced by the taking of such actions or the execution, delivery and filing of such documents or instruments by any such officer without any further action by the Board).

[Signature Page Follows]

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This Unanimous Written Consent of the Board may be executed in one or more counterparts, by electronic transmission and/or by facsimile, each of which shall be an original and all of which together shall be one and the same instrument, and shall be filed with the records of the proceedings of the Board.


Patrick A. Cozza


Thomas Herskovits


Lawrence Miller


G. William Minner

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