SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 5)*

Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

(407) 909-8015

With a copy to:

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).

* Percentage calculated based on 24,280,828 shares of Common Stock outstanding, which is based on 16,197,495 shares of Common Stock actually outstanding and the approximately 8,083,322 shares of Common Stock issuable upon redemption of the New Holdco Units and shares of Preferred Stock.

* Percentage calculated based on 24,280,828 shares of Common Stock outstanding, which is based on 16,197,495 shares of Common Stock actually outstanding and the approximately 8,083,322 shares of Common Stock issuable upon redemption of the New Holdco Units and shares of Preferred Stock. 

* Percentage calculated based on 24,280,828 shares of Common Stock outstanding, which is based on 16,197,495 shares of Common Stock actually outstanding and the approximately 8,083,322 shares of Common Stock issuable upon redemption of the New Holdco Units and shares of Preferred Stock.

Explanatory Note

This Amendment No. 5 (this “Amendment”) amends and supplements the Schedule 13D filed on August 1, 2018 (as amended by Amendment No. 1 to the Schedule 13D filed on August 9, 2018, Amendment No. 2 to the Schedule 13D filed on May 6, 2019, Amendment No. 3 to Schedule 13D filed on May 17, 2019, and Amendment No. 4 to the Schedule 13D filed on July 11, 2019, the “Schedule 13D”) by the Reporting Persons relating to the Common Stock of the Issuer. Information reported in the Schedule 13D remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment. Capitalized terms used but not defined in this Amendment have the respective meanings set forth in the Schedule 13D.

Item 4 of the Schedule 13D is hereby amended and supplemented to include the following:

On August 7, 2019, the Issuer entered into that certain Agreement and Plan of Merger by and among the Issuer, Vitamin Shoppe, Inc. (the “Target”) and the subsidiary of the Issuer named therein (the “Merger Agreement”), pursuant to which the Issuer or a direct or indirect subsidiary thereof has agreed to acquire, through a merger, 100% of the outstanding capital stock of the Target. In connection with the Merger Agreement, (i) Tributum, L.P. (“Tributum”), an investment vehicle managed by Vintage Capital, entered into an equity commitment letter with the Issuer pursuant to which, and subject to the terms and conditions set forth therein, among other things, Tributum committed to provide $70 million in financing through the purchase, directly or indirectly, of shares of Common Stock at a price of $12.00 per share (the “Equity Commitment Letter”), and (ii) certain affiliates of Vintage Capital entered into a voting agreement with the Target pursuant to which, and subject to the terms and conditions set forth therein, among other things, such affiliates of Vintage Capital have agreed to vote all shares of common stock of the Target owned thereby in favor of the transactions contemplated by the Merger Agreement (the “Voting Agreement”).

The foregoing descriptions of the Equity Commitment Letter and the Voting Agreement do not purport to be complete and are subject to, and qualified in their entirety by reference to, the full text of the Equity Commitment Letter and Voting Agreement, copies of which are attached as Exhibits 14 and 15 hereto, respectively, and are incorporated herein by reference.

Item 6 of the Schedule 13D is hereby amended and supplemented to include the following:

All information included in Item 4 is incorporated herein by reference.

Item 7 of the Schedule 13D is hereby amended and supplemented to include the following:

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.

August 8, 2019

Exhibit 14

Execution Version

Tributum, L.P.
c/o Vintage Capital Management, LLC
4705 S. Apopka Vineland Road, Suite 206
Orlando, FL 32819

August 7, 2019

Liberty Tax, Inc.
1716 Corporate Landing Parkway
Virginia Beach, Virginia 23454

Re: Equity Commitment Letter

Ladies and Gentlemen:

This letter agreement (this “Letter Agreement”) sets forth the commitment of Tributum, L.P., a Delaware limited partnership (the “Investor”), subject to the terms and conditions contained herein, to purchase, or cause the purchase, directly or indirectly, of, shares of common stock, par value $0.01 per share (“Parent Common Stock”), of Liberty Tax, Inc. (“Parent”). It is contemplated that, pursuant to the Agreement and Plan of Merger (as amended, restated, supplemented or otherwise modified from time to time pursuant to the terms thereof and hereof, the “Merger Agreement”) entered into concurrently herewith by and among Parent, Valor Acquisition, LLC, Delaware limited liability company (“Merger Sub”), and The Vitamin Shoppe, Inc., a Delaware corporation (the “Company”), subject to the terms and conditions set forth therein, Merger Sub will merge with and into the Company with the Company as the surviving company of such merger as a wholly owned subsidiary of Parent (the “Merger”). Each capitalized term used but not defined herein shall have the meaning ascribed to it in the Merger Agreement.

1.                  Equity Financing Commitment.  The Investor hereby agrees, subject to the terms and conditions set forth herein (including, without limitation, the provisions of Section 2 and Section 9), that at the Closing it will contribute or cause to be contributed to Parent (directly or indirectly) an aggregate amount of cash in immediately available funds equal to the dollar commitment set forth next to its name on Schedule A (the “Equity Financing Commitment”) in exchange, directly or indirectly, for shares of Parent Common Stock at a price per share of $12.00, solely for the purpose of providing Parent with a portion of the funds required to pay the Required Amount upon the Closing pursuant to the Merger Agreement. The Investor may effect the purchase of the shares of Parent Common Stock directly or indirectly through one or more Affiliates or other designated co-investors; provided, that the ability of the Investor to effect the purchase through such Affiliates or other co-investors will not affect any of the Investor’s obligations hereunder; provided, further that Parent shall not be required to seek to enforce its rights against such Affiliates’ or other designated co-investors’ obligations prior to seeking to enforce its rights against the Investor; and provided, further that in the event the Investor assigns a portion of the Equity Financing Commitment to one or more Permitted Assignees in accordance with Section 12, the amount required to be funded by the Investor with respect to the Equity Financing Commitment will be reduced by the amount of the equity investments actually contributed by such assignee to Parent and available to Parent at the Closing.   Notwithstanding anything else to the contrary in this Letter Agreement, under no circumstances shall the Investor be obligated to contribute more cash than the Equity Financing Commitment.

2.                  Conditions.  The obligation of the Investor to fund, or cause the funding of, the Equity Financing Commitment is subject to (a) the satisfaction and continuing satisfaction in full or waiver by Parent of the conditions set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted under the Merger Agreement) of those conditions), (b) the prior or substantially simultaneous receipt of the proceeds of the Debt Financing (net of any fees and expenses that may be payable in respect thereof) on the terms and conditions set forth in the Debt Commitment Letters (or such proceeds will be received substantially simultaneously if the Equity Financing Commitment is funded), and (c) the substantially simultaneous consummation of the Merger in accordance with the terms of the Merger Agreement.

3.                  Enforceability.  This Letter Agreement may be enforced only by (i) Parent and (ii) the Company as provided in Section 8.  None of Parent’s creditors, owners, Affiliates or Representatives or the Company (except as provided in Section 8) or its creditors, owners, Affiliates or Representatives shall have any right to enforce this Letter Agreement or to cause Parent to enforce this Letter Agreement.

4.                  No Modification; Entire Agreement.  No amendment, modification or waiver of any provision hereof shall be enforceable unless approved by Parent, each Investor and the Company in writing; provided that this Letter Agreement may be amended by the Investor without the written consent of the Company to reflect any permitted assignment hereunder.  Together with the Merger Agreement, this Letter Agreement contains the entire agreement between the parties and supersedes all prior agreements, understandings and statements, written or oral, among the parties or their respective Affiliates, with respect to the subject matter hereof and the transactions contemplated hereby.

5.                  Governing Law; Jurisdiction.  This Letter Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to this Letter Agreement or the negotiation, execution or performance of this Letter Agreement (including, without limitation, any actions, proceedings or counterclaims (whether based on contract, tort or otherwise) arising out of or relating to any representation or warranty made in or in connection with this Letter Agreement) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of Delaware.  The parties hereto agree that all Legal Proceedings (whether in contract or tort) seeking to enforce any provision of, or based on any matter arising out of or relating to, this Letter Agreement or the transactions contemplated hereby shall be brought in the Delaware Court of Chancery or, if such court shall not have jurisdiction, any federal court sitting in Delaware, so long as one of such courts shall have subject matter jurisdiction over such action, and that any such action arising out of this Letter Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action and irrevocably waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such action in any such court or that any such action 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.

6.                  WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 6.

7.                  Counterparts.  This Letter Agreement may be executed in any number of counterparts (including by facsimile or via email by .pdf delivery), each such counterpart when executed being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.  Facsimile and other electronically scanned signatures shall be deemed originals for all purposes of this Letter Agreement.

8.                  Third Party Beneficiaries.  This Letter Agreement shall inure to the benefit of and be binding upon Parent and the Investor.  Except as provided in Section 3, Section 4, this Section 8 (with respect to each of which the Company shall be a third party beneficiary), Section 10 and Section 11 (with respect to which each Related Party (as defined below) shall be a third party beneficiary) and Section 12 the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Letter Agreement, no person other than the parties hereto shall be entitled to rely upon this Letter Agreement and nothing herein or in any other agreement (including, without limitation, the Merger Agreement), express or implied, is intended to or shall confer upon any person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder or any rights to enforce the Equity Financing Commitment or any provision of this Letter Agreement; provided, however, that subject to the terms and conditions of the Merger Agreement, including, without limitation, Section 9.8(b) thereof, the Company is hereby made a third party beneficiary of the rights granted to Parent under this Letter Agreement for the sole purpose of seeking specific performance of the obligation of the Investor to fund, or cause the funding of, the Equity Financing Commitment (solely to the extent that Parent can enforce the Equity Financing Commitments pursuant to the terms and conditions hereof, including, without limitation, Section 1 and Section 2), and for no other purpose (including, without limitation, any claim for monetary damages hereunder, under the Merger Agreement or otherwise); provided, however that in no event shall the Company be entitled to enforce the terms of this Letter Agreement unless the conditions set forth in Section 9.8(b) of the Merger Agreement have been satisfied and in no event shall the Investor be required to fund any portion of the Equity Financing Commitment unless all conditions to such obligations as set forth herein have been satisfied or waived by such Investor.  The Investor hereby agrees, subject in all respects to Section 9.8(b) of the Merger Agreement, not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that Parent or the Company, as applicable, has an adequate remedy at law.

9.                  Termination.  This Letter Agreement, and the obligation of the Investor to fund the Equity Financing Commitment, will terminate automatically and immediately upon the earliest to occur of (a) the Closing (if the Merger has been consummated in accordance with the terms of the Merger Agreement), (b) the valid termination of the Merger Agreement in accordance with its terms, (c) receipt by the Company of payment in full of the Parent Termination Fee together with any payment due to the Company pursuant to Section 8.3(e) of the Merger Agreement and the Reimbursement Obligations, (d) the Termination Date, and (e) the effective date of any amendment to Section 2.7 or Section 2.8 of the Merger Agreement (so as to increase the Per Share Price or the aggregate amount payable by Parent pursuant to the Merger Agreement), Section 9.8(b) of the Merger Agreement or any other term, provision or condition set forth in the Merger Agreement (including any condition to the Closing set forth in Section 7.1 or Section 7.2 of the Merger Agreement) that is adverse to the Investor, in each case without the prior written consent of the Investor.  Upon the termination of this Letter Agreement, the Investor shall not have any liability or obligations hereunder.  Section 3, Section 4, Section 5, Section 6, Section 8, Section 9, Section 10, Section 11, Section 14, Section 15, Section 16 and Section 18 shall survive any termination of this Letter Agreement.

10.              No Recourse.

(a)               Each party hereto, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no recourse under this Letter Agreement shall be had, including, without limitation, for any claims, obligations, liabilities, causes of action, or Legal Proceedings under this Letter Agreement (in each case, whether in tort, contract or otherwise, at law or in equity, or pursuant to statute), including, without limitation, those that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to, this Letter Agreement or the negotiation, execution, performance or breach of this Letter Agreement, including, without limitation, any representation or warranty made in, in connection with, or as an inducement to, this Letter Agreement (each of such above described legal or equitable theories or sources of liability, a “Claim”) against (i) any Related Party of the Investor (other than the Investor, Parent, Merger Sub and their respective successors and permitted assigns) or (ii) any Related Party of any of such Related Parties (other than the Investor, Parent, Merger Sub and their respective successors and permitted assigns), in each case whether by the enforcement of any assessment or by any legal or equitable proceedings, or by virtue of any statute, regulation or other applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred (whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim by or on behalf of Parent against any Related Party of the Investor, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise) by (x) any Related Party of the Investor (other than the Investor, Parent or Merger Sub and their respective successors and permitted assigns) or (y) any Related Party of any of such Related Parties (other than the Investor, Parent, Merger Sub and their respective successors and permitted assigns), in each case, for any obligations of the Investor under this Letter Agreement.  For the purposes of this Letter Agreement, the term “Related Party” of any person shall mean any and all former, current or future directors, officers, employees, agents, direct or indirect equity holders, controlling persons, general or limited partners, managers, members, stockholders, co-investors, attorneys, financial or other professional advisors, representatives or Affiliates (other than a Permitted Assignee to which an assignment pursuant to Section 12 has been effected) of such person and their respective successors and permitted assigns.

(b)               Without limiting the generality of the foregoing, to the maximum extent permitted under applicable Law, Parent hereby waives, releases and disclaims any and all Claims including, without limitation, (i) against all Related Parties of the Investor and the Related Parties of such Related Parties, including, without limitation, any Claims to avoid or disregard the entity form of a Related Party of the Investor or a Related Party of such Related Parties or otherwise impose any liability arising out of, relating to or in connection with a Claim on any Related Parties of the Investor or Related Parties of such Related Parties, whether a Claim granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise, and (ii) of reliance upon any Related Parties of the Investor or Related Parties of such Related Parties with respect to the performance of this Letter Agreement or any representation or warranty made in, in connection with, or as an inducement to this Letter Agreement.

11.              Sole and Exclusive Remedy.  Notwithstanding anything to the contrary in this Letter Agreement, the Company and the other Company Related Parties shall not have, and are not intended to have, any right of recovery of any kind (including, without limitation, consequential, indirect or punitive damages, and whether at law, in equity or otherwise) against the Investor or any Related Party thereof (other than Parent, Merger Sub and their respective successor and assigns) in respect of any liabilities or obligations arising under this Letter Agreement, the Merger Agreement or the transactions contemplated hereby or thereby or the failure of the Merger to be consummated or in respect of any oral representations made or alleged to be made in connection herewith or therewith, except for the right of the Company, assuming the conditions in Section 2 have been fully satisfied, to specifically enforce against the Investor the provisions of this Letter Agreement pursuant to Section 8 (subject to and in accordance with Section 9.8 of the Merger Agreement) and the right of the Company to pursue a Claim against the Investor in the case of a breach of the Voting Agreement thereby.

12.              No Assignment.  This Letter Agreement and the benefits and obligations under this Letter Agreement may not be assigned by Parent, in whole or in part, without the prior written consent of the Investor and the Company and any attempted assignment in derogation of the foregoing shall be null and void and of no force and effect; provided, that no such assignment or transfer shall relieve Parent of its obligations hereunder.  No assignment of this Letter Agreement or assignment (in whole or in part) by the Investor of the Investor’s rights or obligations hereunder shall be permitted without the prior written consent of Parent or the Company; provided, that the Investor shall be permitted to assign all or any part of its rights and obligations under this Letter Agreement without the prior consent of Parent, the Company or any other person to one or more of its Affiliates, investment funds managed by it or its Affiliates or any such Affiliates’ limited partners and/or managed entities and/or accounts and/or to one or more third party co-investors or any other Person (such Person, a “Permitted Assignee”); provided, further, that no such assignment or transfer to a Permitted Assignee shall relieve the Investor of its obligations hereunder except in respect of any portion of the Equity Financing Commitment actually funded by such assignee and available to Parent at the Closing; provided, further, that that no Person shall be deemed a Permitted Assignee if assignment to such Person or entering into a corresponding commitment with such Person would result in any consent or approval of, or filing, declaration or registration with, any Governmental Authority being required in connection with Parent’s acquisition of the Company under the Merger Agreement that would reasonably be expected to delay the consummation of the Merger.  Any purported assignment or transfer in violation of the preceding sentence shall be null and void.

13.              Representations and Warranties.  The Investor represents and warrants to Parent that:  (a) it is duly organized, validly existing and in good standing under the Laws of the state or jurisdiction of its organization; (b) it has the requisite capacity and authority to execute and deliver this Letter Agreement and to fulfill and perform its obligations hereunder; (c) the execution, delivery and performance of this Letter Agreement by it have been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of it are necessary therefor; (d) this Letter Agreement has been duly and validly executed and delivered by it and constitutes a legal, valid and binding agreement of it enforceable against it in accordance with its terms (subject, in the case of enforceability, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors rights generally and general principles of equity); (e) the execution, delivery and performance by it of this Letter Agreement do not and will not (i) violate any applicable Law or any provision of the partnership agreement, operating agreement or similar organizational documents of the Investor or (ii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, any material contract to which it is a party, except as does not prevent or materially delay or impair the performance of this Letter Agreement by the Investor; and (f) it has the financial capacity to pay and perform all of its obligations under this Letter Agreement, and will have sufficient cash on hand, or available and uncalled capital commitments available, to fund the Equity Financing Commitment when required pursuant to this Letter Agreement.

14.              Confidentiality.  This Letter Agreement shall be treated as confidential and is being provided to Parent solely in connection with the Transactions.  This Letter Agreement may not be used, circulated, quoted or otherwise referred to in any document (other than the Merger Agreement and the Commitment Letters) by Parent or the Investor or their respective Affiliates except with the prior written consent of the other parties in each instance.  The foregoing notwithstanding, this Letter Agreement will be provided to the Company, and each party hereto and the Company may disclose the existence and terms of this Letter Agreement without obtaining the written consent of any person to its legal, accounting and financial advisers and other representatives, to the extent required by applicable Law, the applicable rules of any national securities exchange or in connection with any filing by any party or any Affiliate thereof with the Securities and Exchange Commission (“SEC”) relating to the Transactions  (including in connection with any applicable proxy statement, current report on Form 8-K or statement on Schedule 13D (or any amendments thereto) filed with the SEC) or in connection with any litigation relating to this Letter Agreement the Merger Agreement and the transactions contemplated thereby; provided, that, in the case of any disclosure made in connection with any SEC filing, the disclosing party shall provide the other parties with a reasonable opportunity to review and provide comments on any such disclosure in advance, which such comments shall not be unreasonably delayed; provided, further, that the disclosing party shall in good faith consider any such comments made by such other parties.

15.              Notice. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Letter Agreement shall be in writing and shall be deemed to have been given (a) immediately upon delivery by hand or, if by e-mail, upon written or electronic confirmation of receipt, (b) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, or (c)  one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, in each case as follows.  Notices, demands and communications, in each case to the respective parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing by such party:

Notices to the Investor:

c/o Vintage Capital Management, LLC

4705 S. Apopka Vineland Road, Suite 206

Orlando, FL 32819

Attention: Brian Kahn

Facsimile: (208) 728-8007
E-mail: bkahn@vintcap.com

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

Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention:  Russell Leaf, Esq.
Facsimile:  (212) 728-8111
Email: rleaf@willkie.com

Notices to Parent:

As provided in Section 9.2 of the Merger Agreement.

16.              Relationship of the Parties.  Each party acknowledges and agrees that (a) this Letter Agreement is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this Letter Agreement nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise, and (b) the obligations of the Investor under this Letter Agreement are solely contractual in nature.  

17.              Changes to Merger Agreement; Notices. Neither Parent nor Merger Sub shall agree to or permit any amendment or modification to or termination of, or waive any of its rights or obligations under, Section 2.7 or Section 2.8 of the Merger Agreement (so as to increase the Per Share Price or the aggregate amount payable by Parent pursuant to the Merger Agreement), Section 9.8(b) of the Merger Agreement or any other term, provision or condition set forth in the Merger Agreement (including any condition to the Closing set forth in Section 7.1 or Section 7.2 of the Merger Agreement) that is adverse to the Investor, in each case without the prior written consent of the Investor. Parent shall promptly deliver, or cause to be delivered, to the Investor copies of all requests for consents, waivers, notices and other communications delivered to Parent and/or Merger Sub pursuant to Section 9.2 of the Merger Agreement or otherwise.

18.                  Expense Reimbursement. Parent shall pay or reimburse the reasonable fees and expenses of the Investor or any Affiliate thereof incurred in connection with the negotiation and execution of this Letter Agreement, the Merger Agreement and the transactions contemplated hereby and thereby (including the reasonable fees and expenses of counsel to the Investor), whether or not the transactions contemplated hereby or by the Merger Agreement are consummated.

19.                  Severability.  Whenever possible, each provision of this Letter Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Letter Agreement is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Letter Agreement.

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SCHEDULE A

Equity Financing Commitments