-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Pb2Rjx6Fd4RDgLy52+Al+9bR17xdfCQyTEtlvvFpE1pl0hTQJs/SPTG9RGzUipt+ OTar2S8dmn3efg2AJz2bYA== 0000950142-97-000267.txt : 19970407 0000950142-97-000267.hdr.sgml : 19970407 ACCESSION NUMBER: 0000950142-97-000267 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970404 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FAMILY BARGAIN CORP CENTRAL INDEX KEY: 0000813775 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-FAMILY CLOTHING STORES [5651] IRS NUMBER: 510299573 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39314 FILM NUMBER: 97575351 BUSINESS ADDRESS: STREET 1: 315 EAST 62ND ST STREET 2: 6TH FLR CITY: NEW YORK STATE: NY ZIP: 10021 BUSINESS PHONE: 2129809670 MAIL ADDRESS: STREET 1: 315 EAST 62ND ST CITY: NEW YORK STATE: NY ZIP: 10021 FORMER COMPANY: FORMER CONFORMED NAME: DRS INDUSTRIES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: LONGWOOD GROUP LTD DATE OF NAME CHANGE: 19920527 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TERFIN INTERNATIONAL LTD CENTRAL INDEX KEY: 0001031009 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 000000000 STATE OF INCORPORATION: D8 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 135 EAST 57TH ST STREET 2: C/O THREE CITIES RESEARCH INC CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2128389660 MAIL ADDRESS: STREET 1: C/O THREE CITIES RESEARCH INC STREET 2: 135 EAST 57TH ST CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 AMENDMENT NO. 1 TO SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* ----------------------- FAMILY BARGAIN CORPORATION (Name of Issuer) COMMON STOCK, PAR VALUE $.01 (Title of Class of Securities) 306889403 (CUSIP Number) ----------------------- ROBERT M. HIRSH, ESQ. PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 AVENUE OF THE AMERICAS NEW YORK, NY 10019-6064 TEL. NO.: (212) 373-3000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) ----------------------- MARCH 14, 1997 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP NO. 306889403 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Terfin International, Ltd. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ] (B) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands 7 SOLE VOTING POWER NUMBER OF 2,514,546 including Series B Preferred SHARES convertible into 2,359,002 shares of BENEFICIALLY OWNED Common Stock BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 2,514,546 including Series B Preferred convertible into 2,359,002 shares of Common Stock 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,514,546 including Series B Preferred convertible into 2,359,002 shares of Common Stock 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 35.4% 14 TYPE OF REPORTING PERSON CO - ------ -------------- CUSIP NO. 306889403 AMENDMENT NO. 1 TO SCHEDULE 13D THIS AMENDMENT NO. 1 SUPPLEMENTS THE SCHEDULE 13D ("SCHEDULE 13D"), FILED ON JANUARY 22, 1997, IN THE FOLLOWING RESPECTS ONLY (CAPITALIZED TERMS USED HEREIN SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THE SCHEDULE 13D): ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is amended and restated in its entirety as follows: (a) Terfin may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the beneficial owner of 2,514,546 shares of Common Stock (including 2,359,002 shares of Common Stock issuable upon conversion of the 4,484 shares of the Series B Preferred and 47,297 shares of Common Stock issued upon conversion of 17,745 shares of the Series A Preferred held by Terfin), which constitutes approximately 35.4% of the 7,099,636 shares of Common Stock deemed outstanding with respect to Terfin pursuant to Rule 13d-3(d)(1)(i) of the Exchange Act. (b) Terfin has the sole power to vote, direct the vote of, dispose of or direct the disposition of any and all Common Stock held by Terfin. (c) Except as set forth herein or in Exhibits filed herewith, neither Terfin, nor to the best knowledge of Terfin, any of the persons listed in Item 2(a) has effected any transaction in the Common Stock of the Company within the past 60 days. (d) Except as set forth in this Item 5, to the best knowledge of Terfin, none of the persons named in Item 2(a) beneficially owns any shares of Common Stock of the Company. On the basis of its control, through an intermediate holding company, of Terfin, the board of directors of EQ may be deemed to have the ultimate power to direct the voting or disposition, as well as the application of dividends from, or the proceeds of the sale of, the Common Stock owned by Terfin. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. The second paragraph of Item 6 is amended to add the following: 9,100 of the additional 10,000 shares of Series B Preferred were allocated among the designees and assignees of the Purchasers in the following manner: (a) pursuant to a Joinder Agreement, dated as of February 20, 1997 (the CUSIP NO. 306889403 "Joinder Agreement"), a copy of which is attached hereto as Exhibit 1, made by the persons named under the caption "Designees" on the signature pages thereof (the "Designees"), the Purchasers allocated the remaining 5,000 shares of the Company's Series B Preferred to the Designees and such Designees purchased such 5,000 shares of Series B Preferred; (b) an Amendment to Securities Purchase Agreement made and entered into on March 10, 1997, a copy of which is attached hereto as Exhibit 2, among the Purchasers and the Company amended the Securities Purchase Agreement to provide the Purchasers and the Designees with the option to purchase from the Company, ratably in proportion to the number of Securities owned by each Purchaser and Designee as of March 10, 1997, up to 5,000 shares of Series B Preferred; and (c) pursuant to an Assignment and Assumption and Joinder Agreement, dated as of March 14, 1997 (the "Assignment and Assumption Agreement"), a copy of which is attached hereto as Exhibit 3, the Purchasers and Klingenstein Charitable Partners B assigned their rights to purchase 4,100 shares of the Company's Series B Preferred to the persons listed on the signature pages thereof under the caption "Assignees." On March 14, 1997, Terfin converted its 17,745 shares of Series A Preferred to Common Stock. Pursuant to a Securities Purchase Agreement, dated as of March 14, 1997 (the "March 1997 Securities Purchase Agreement"), a copy of which is attached hereto as Exhibit 4, by and between the Purchasers and the purchasers listed on the signature pages thereof (the "Buyers"), Terfin sold 25,509 shares of Common Stock at Purchasers' cost to the Buyers in exchange for 84 shares of Series B Preferred. As a result of the foregoing transactions, Terfin (a) acquired 84 shares of Series B Preferred, (b) acquired 21,788 shares of Common Stock and (c) disposed of 17,745 shares of Series A Preferred. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 Joinder Agreement Exhibit 2 Amendment to Securities Purchase Agreement Exhibit 3 Assignment and Assumption Agreement Exhibit 4 March 1997 Securities Purchase Agreement CUSIP NO. 306889403 SIGNATURE After reasonable inquiry and to the best of the knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: April 4, 1997 TERFIN INTERNATIONAL LTD. By: /S/ J. WILLIAM UHRIG ------------------------ Name: J. William Uhrig Title: Attorney-in-Fact CUSIP NO. 306889403 EXHIBIT INDEX Page on which NUMBER DOCUMENT EXHIBIT APPEARS - ------ -------- --------------- 1 Joinder Agreement 2 Amendment to Securities Purchase Agreement 3 Assignment and Assumption Agreement 4 March 1997 Securities Purchase Agreement EX-1 2 JOINDER AGREEMENT CONFORMED COPY JOINDER AGREEMENT JOINDER AGREEMENT, dated as of February 20, 1997, made by the individuals and institutions named under the caption "Designees" on the signature pages hereof (collectively, the "DESIGNEES") pursuant to the Securities Purchase Agreement, dated December 30, 1996 (as amended, supplemented or otherwise modified from time to time, the "SECURITIES PURCHASE AGREEMENT"), among Family Bargain Corporation, a Delaware corporation (the "COMPANY"), and the Persons set forth on Schedule 2.2 thereto (the "PURCHASERS"). Unless otherwise defined herein, terms defined in the Securities Purchase Agreement and used herein shall have the meanings given to them in the Securities Purchase Agreement. WHEREAS, pursuant to Section 2 of the Securities Purchase Agreement, the Purchasers desire to allocate the remaining 5,000 shares of the Company's Series B Preferred (the "Securities") of their deferred obligation to purchase such Series B Preferred among the Designees. WHEREAS, the Company desires to sell to the Designees, and the Designees desire to purchase, the Securities at the Purchase Price Per Security (or $5,000,000.00 in the aggregate) upon the terms and subject to the conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the suffi ciency of which hereby is acknowledged, each Designee hereby agrees as follows: (a) It shall (i) be deemed to be a Purchaser for all purposes under the Securities Purchase Agreement and shall have all the rights and obligations of a Purchaser thereunder, except pursuant to Section 2.3 of the Securities Purchase Agreement, and (ii) be deemed to be a Holder (as defined in the Registration Rights Agreement) for all purposes under the Registration Rights Agreement and shall have all the rights and obligations of a Holder thereunder; (b) It hereby acknowledges that it has received and reviewed, and is relying upon in making its investment decision, a copy (in executed form) of (i) the Securities Purchase Agreement (including, without limitation, all amendments, supple ments and other modifications thereto), (ii) the Disclosure Letter, (iii) each of the Transaction Agreements referred to in the Securities Purchase Agreement (including, without limitation, all amendments, supplements and other modifications thereto), (iv) all documents, agreements and certificates (including, without limitation, all amendments, supplements and other modifications thereto) related to the Securities Purchase Agreement and the Transaction Agreements delivered at the Initial Closing, (v) all documents (including, without limitation, all amendments, supplements and other modifications thereto) delivered on January 13, 1997 related to the closing of the Separation Agreement, (vi) the Company's Annual Report on Form 10-K for the year ended January 27, 1996 (as amended by the Company's Form 10-K/A, dated 2 May 14, 1996), as filed with the SEC (including, in each case, all exhibits and schedules thereto and documents incorporated by reference therein) and (vii) the Company's Quarterly Report on Form 10-Q for the quarter ended October 26, 1996, as filed with the SEC. (c) It shall (i) be bound by all covenants, agreements, acknowledg ments and other terms and provisions (except the representations and warranties of Purchasers other than as expressly provided herein) applicable to it, as a Purchaser pursuant to the Securities Purchase Agreement and the other Transaction Agreements to the same extent, and in the same manner, as if it were a direct party thereto; PROVIDED, HOWEVER, it shall be bound by, and does hereby make with respect to itself, the representations and warranties of Purchasers contained in Sections 5.1, 5.2, 5.3, 5.4 and 5.5 of the Securities Purchase Agreement, and (ii) perform all obligations required of its pursuant to the Securities Purchase Agreement and such Transaction Agreements. (d) It hereby acknowledges that no other representations and warranties are being made to it as a Purchaser by the Company other than those made in Section 4 of the Securities Purchase Agreement to the same extent, and in the same manner as if it (in its capacity as a Purchaser) were a direct party thereto; (e) It hereby acknowledges that the Purchasers listed on Schedule 2.2 of the Securities Purchase Agreement are not making any representations and warranties to it and have no liabilities or obligations to it pursuant to the Securities Purchase Agreement, this Joinder Agreement or otherwise. This Joinder Agreement shall become effective upon the last to occur of (a) the due execution and delivery of this Joinder Agreement by all parties hereto, (b) the delivery to each of the Designees of certificates representing such number of Securities as are set forth opposite such Designees name on Schedule 2.2A hereto, each registered in the name of such Designee or its nominees, and (c) payment of the Purchase Price Per Security with respect to such Securities by wire transfer of immediately available funds to an account or accounts previously designed by the Company. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This Joinder Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 3 IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and delivered in New York, New York, United States of America by its proper and duly authorized officer as of the date first written above. DESIGNEES: ---------- KLINGENSTEIN CHARITABLE PARTNERS B By: /S/ KENNETH H. FIELDS ------------------------------------ Name: Kenneth H. Fields Title: Trustee K. INVESTMENT PARTNERS L.P. II By:/S/ KENNETH H. FIELDS ------------------------------------ Name: Kenneth H. Fields Title: General Partner ELL & CO. FBO AT&T INVESTMENT MANAGEMENT CORP. TRUSSAL & CO. FBO M.E.R.S. OF MICHIGAN BOSTON SAFE DEPOSIT TRUST CO. FBO VIRGINIA RETIREMENT SYSTEM HOW & CO. FBO COLUMBIA HEALTHCARE CORP. SIGLAR & CO. FBO IRON WORKERS PENSION TRUST FUND ELL & CO. FBO OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM BEAMPORT & CO. FBO SCHWAN'S PROFIT SHARING TRUST SALKELD & CO. FBO DONALDSON COMPANY, INC. 4 IOWA STATE UNIVERSITY FOUNDATION MAC & CO. FBO KRESGE FOUNDATION STATE STREET BANK & TRUST CO. FBO MONTGOMERY COUNTY EMPLOYEE RET MAC & CO. FBO LOCAL 25 SEIU PITT & CO. FBO TRACOR INC. SALKELD & CO. FBO SISTERS OF ST. JOSEPH OF CARONDELET PITT & CO. FBO CITY OF NEW HAVEN BOST & CO. FBO THE COMMON FUND HOW & CO. FBO OUTBOARD MARINE By: Kennedy Capital Management, Inc., as Attorney-In-Fact By:/S/ RICHARD SINISE ------------------------------------ Name: Richard Sinise Title: Portfolio Manager By:/S/ JAMES D. SOMERVILLE ------------------------------------ James D. Somerville By:/S/ RONALD RASHKOW ------------------------------------ Ronald Rashkow By:/S/ LINDA RASHKOW ------------------------------------ Linda Rashkow 5 By:/S/ AMY RASHKOW ------------------------------------ Amy Rashkow By:/S/ MARK RASHKOW ------------------------------------ Mark Rashkow By:/S/ ANDREW RASHKOW ------------------------------------ Andrew Rashkow By:/S/ NORMAN CHAPMAN ------------------------------------ Norman Chapman JAMES L. KATZ PROFIT SHARING PLAN By: Mesirow Financial Inc., as Agent for Ellyn Katz, as Trustee By:/S/ GREGORY J. KAMINSKI ------------------------------------ Name: Gregory J. Kaminski Title: Supervisor - Retirement Plans Dept. By:/S/ PETER HANDAL ------------------------------------ Peter Handal 6 ACKNOWLEDGED AND AGREED - ----------------------- TO: - --- THREE CITIES FUND II, L.P. By: TCR Associates, L.P., as General Partner By:/S/ WILLEM F.P. DE VOGEL ------------------------------------ Name: Willem F.P. de Vogel Title: General Partner THREE CITIES OFFSHORE II C.V. By: TCR Offshore Associates, L.P., as General Partner By:/S/ J. WILLIAM UHRIG ------------------------------------ Name: J. William Uhrig Title: General Partner TERFIN INTERNATIONAL, LTD. By:/S/ J. WILLIAM UHRIG ------------------------------------ Name: J. William Uhrig Title: Attorney-In-Fact FAMILY BARGAIN CORPORATION By:/S/ WILLIAM W. MOWBRAY ------------------------------------ Name: William W. Mowbray Title: President & Chief Executive Officer Schedule 2.2A to JOINDER AGREEMENT SECURITIES Number of DESIGNEES SECURITIES - --------- ---------- Klingenstein Charitable Partners B 200 K. Investment Partners L.P. III 800 Ell & Co. FBO AT&T Investment Management Corp. 295 Trussal & Co. FBO M.E.R.S. of Michigan 475 Boston Safe Deposit Trust Co. FBO Virginia Retirement System 420 How & Co. FBO Columbia Healthcare Corp. 150 Siglar & Co. FBO Iron Workers Pension Trust Fund 35 Ell & Co. FBO Oklahoma Law Enforcement Retirement System 88 Beamport & Co. FBO Schwan's Profit Sharing Trust 150 Salkeld & Co. FBO Donaldson Company Inc. 65 Iowa State University Foundation 105 Mac & Co. FBO Kresge Foundation 250 State Street Bank & Trust Co. FBO Montgomery County Employee RET 335 Mac & Co. FBO Local 25 SEIU 25 Pitt & Co. FBO Tracor Inc. 22 Salkeld & Co. FBO Sisters of St. Joseph of Carondelet 50 Pitt & Co. FBO City of New Haven 33 Bost & Co. FBO the Common Fund 242 How & Co. FBO Outboard Marine 260 James D. Somerville 250 Ronald Rashkow 100 Linda Rashkow 100 Amy Rashkow 50 Mark Rashkow 50 Andrew Rashkow 50 Norman Chapman 100 James L. Katz Profit Sharing Plan 50 Peter Handel 250 ------ Total 5,000 EX-2 3 AMENDMENT TO SECURITIES PURCHASE AGMNT. CONFORMED COPY AMENDMENT TO SECURITIES PURCHASE AGREEMENT THIS AMENDMENT is made and entered into as of March 10, 1997 among Three Cities Fund II, L.P. ("Fund II"), Three Cities Offshore II C.V. ("Offshore II"), Terfin International, Ltd. ("Terfin", and collectively with Fund II and Offshore II the "Initial Purchasers") and Family Bargain Corporation, a Delaware corporation (the "Company"). RECITALS The Initial Purchasers and the Company entered into a Securities Purchase Agreement, dated December 30, 1996, as supplemented by that certain Joinder Agreement, dated as of February 20, 1997, made by the individuals and institutions named under the caption "Designees" on the signature pages thereof (the "Securities Purchase Agreement") pursuant to which the Purchasers purchased 27,000 shares of Series B Preferred of the Company. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Securities Purchase Agreement. The Initial Purchasers (as holders of the Securities representing 81.48% of the aggregate outstanding Securities) desire to amend Section 2.4 of the Securities Purchase Agreement and have requested the Company to agree to the requested amendment. The Company, subject to the terms and conditions set forth herein, has agreed to such amendment. AGREEMENTS IN CONSIDERATION of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agrees as follows: 1. AMENDMENT. (a) Section 2.4 of the Securities Purchase Agreement is hereby amended as follows: 2.4 POST-CLOSING OPTION. The Purchasers shall have an option to purchase from the Company, ratably in proportion to the number of Securities owned by each Purchaser as of March 10, 1997, at the same price and on the same term and conditions as this Agreement, at any time up to and including 90-days from the Initial Closing, up to 5,000 shares of Series B Preferred in addition to the 27,000 shares purchased at the Initial Closing and/or deferred pursuant to the proviso in Section 2.1. This option may be exercised by any Purchaser by written notice by such Purchaser to the Company; 2 PROVIDED, HOWEVER, the option to purchase any Purchaser's portion of such Securities may be assigned by such Purchaser to assignees pursuant to Section 10.2 of this Agreement, which assignees may then exercise such option by written notice to the Company. 2. REPRESENTATIONS AND WARRANTIES. The Initial Purchasers represent and warrant that (i) all necessary corporate or partnership, as the case may be, actions on the part of each Initial Purchaser to authorize the execution, delivery and performance of this Amendment have been taken; (ii) this Amendment has been duly validated and executed and is legally valid and binding upon each Initial Purchaser and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or like laws or by general equitable principals; (iii) no consent, approval or authorization of, or filing, registration or qualification with any governmental authority or any other Person is required to be obtained by the Initial Purchasers in connection with the execution, delivery or performance of this Amendment, which has already not been obtained or completed. 3. COUNTERPARTS. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 4. GOVERNING LAW. This Amendment shall be a contract made under and governed by the laws of the State of New York, without regard to the conflicts of law provisions thereof. 5. BINDING EFFECT. This Amendment shall be binding upon and shall enure to the benefit of the Initial Purchasers and the Company and their respective successors and assigns. 6. REFERENCE TO SECURITIES PURCHASE AGREEMENT. Except as amended hereby, the Securities Purchase Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. On and after the effectiveness of the amendment to the Securities Purchase Agreement accomplished hereby, each reference in the Securities Purchase Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like import, in each reference to the Securities Purchase Agreement in any other agreement document or instrument executed and delivered pursuant to the Securities Purchase Agreement, shall be deemed a reference to the Securities Purchase Agreement, as amended hereby. 3 IN WITNESS WHEREOF, the undersigned have executed this Amendment to Securities Purchase Agreement as of the day and year first above written. FAMILY BARGAIN CORPORATION By:/S/ WILLIAM W. MOWBRAY ------------------------------ Name: William Mowbray Title: President & CEO INITIAL PURCHASERS: THREE CITIES FUND II, L.P. - ------------------- By: TCR Associates, L.P., as General Partner By:/S/ WILLEM F.P. DE VOGEL ------------------------------ Name: Willem F.P. de Vogel Title: General Partner THREE CITIES OFFSHORE II C.V. By: TCR Offshore Associates, L.P., as General Partner By:/S/ J. WILLIAM UHRIG ------------------------------ Name: J. William Uhrig Title: General Partner TERFIN INTERNATIONAL, LTD. By:/S/ J. WILLIAM UHRIG ------------------------------ Name: J. William Uhrig Title: Attorney-In-Fact EX-3 4 ASSIGNMENT AND ASSUMPTION AGREEMENT CONFORMED COPY ASSIGNMENT AND ASSUMPTION AND JOINDER AGREEMENT AGREEMENT, dated as of March 14, 1997, among the Persons listed on the signature pages hereto under the caption "Assignors" (collectively, the "Assignors"), the Persons listed on the signature pages hereof under the caption "Assignees" (the "Assignees") and Family Bargain Corporation, a Delaware corporation (the "Company"). WHEREAS, pursuant to that certain Securities Purchase Agreement, dated December 30, 1996, as supplemented by that certain Joinder Agreement, dated as of February 20, 1997, made by the individuals and institutions named under the caption "Designees" on the signature pages thereof, and as amended by that certain Amendment to Securities Purchase Agreement, dated as of March 10, 1997, among Three Cities Fund II, L.P., Three Cities Offshore II C.V., Terfin International, Ltd. and the Company (the "Securities Purchase Agreement"), among the Company and the Purchasers named therein, the Purchasers have the right to purchase from the Company, ratably in proportion to the number of Securities owned by each Purchaser, at the same price and on the same terms and conditions as the Securities Purchase Agreement, at any time up to and including April 10, 1997, up to 5,000 additional shares of Series B Preferred (the "Additional Securities"). WHEREAS, the Assignors desire to assign their right to purchase 4,100 shares of the Additional Securities to the Assignees as set forth opposite each Assignee's name on Exhibit A attached hereto pursuant to Section 10.2 of the Securities Purchase Agreement. WHEREAS, each Assignee desires to (i) accept such assignment, (ii) exercise its right to purchase such amount of Additional Securities as set forth opposite such Assignee's name on Exhibit A pursuant to Section 2.4 of the Securities Purchase Agreement and (iii) be deemed to be a Purchaser under the Securities Purchase Agreement and to be bound by the terms and conditions of the Securities Purchase Agreement as provided for herein. WHEREAS, the Company desires to sell to the Assignees such amount of Additional Securities upon the terms and conditions in the Securities Purchase Agreement. NOW, THEREFORE, for good and valuable consideration, the sufficiency of which hereby is acknowledged, the parties hereto agree as follows (unless otherwise defined herein, terms defined in the Securities Purchase Agreement and used herein shall have the meanings given to them in the Securities Purchase Agreement): 2 (a) Each of the Assignors hereby assigns, transfers and conveys to each Assignee, and each Assignee hereby accepts and assumes, all right, title and interest the Assignors have in, and with respect to, the option contained in Section 2.4 of the Securities Purchase Agreement to purchase such amount of Additional Securities as set forth on Exhibit A. Each Assignee hereby assumes and agrees to perform all of the Purchaser's obligations and liabilities under or related to the Securities Purchase Agreement with respect thereto; (b) By execution hereof, each Assignee (i) hereby exercises the option under Section 2.4 of the Securities Purchase Agreement with respect to the amount of Additional Securities set forth on Exhibit A, (ii) shall be deemed to be a Purchaser for all purposes under the Securities Purchase Agreement and shall have all the rights and obligations of a Purchaser thereunder, except pursuant to Section 2.3 thereof, and (iii) shall be deemed to be a Holder (as defined in the Registration Rights Agreement) for all purposes under the Registration Rights Agreement and shall have all the rights and obligations of a Holder thereunder; (c) Each Assignee hereby acknowledges that it has received and reviewed, and is relying upon in making its investment decision, a copy (in executed form) of (i) the Securities Purchase Agreement (including, without limitation, all amendments, supplements and other modifications thereto), (ii) the Disclosure Letter to the Securities Purchase Agreement, (iii) each of the Transaction Agreements referred to therein (including, without limitation, all amendments, supplements and other modifications thereto), (iv) all documents, agreements and certificates (including, without limitation, all amendments, supplements and other modifications thereto) related to the Securities Purchase Agreement and the Transaction Agreements delivered at the Initial Closing, (v) all documents (including, without limitation, all amendments, supplements and other modifications thereto) delivered on January 13, 1997 related to the closing of the Separation Agreement, (vi) the Company's Annual Report on Form 10-K for the year ended January 27, 1996 (as amended by the Company's Form 10-K/A, dated May 14, 1996), as filed with the SEC (including, in each case, all exhibits and schedules thereto and documents incorporated by reference therein) and (vii) the Company's Quarterly Report on Form 10-Q for each of the quarters ended April 27, 1996, July 27, 1996 and October 26, 1996, as filed with the SEC; (d) Each Assignee agrees that it shall (i) be bound by all covenants, agreements, acknowledgments and other terms and provisions (except the representations and warranties of Purchasers other than as expressly provided herein) applicable to it, as a Purchaser pursuant to the Securities Purchase Agreement and the other Transaction Agreements to the same extent, and in the same manner, as if it were a direct party thereto; PROVIDED, HOWEVER, it shall be bound by, and does hereby make with respect to itself, the representations and warranties of Purchasers contained in Sections 5.1, 5.2, 5.3, 5.4 and 5.5 of the Securities Purchase Agreement, and (ii) 3 perform all obligations required of it pursuant to the Securities Purchase Agreement and such Transaction Agreements; (e) Each Assignee hereby acknowledges that no other representations and warranties are being made to it as a Purchaser by the Company other than those made in Section 4 of the Securities Purchase Agreement to the same extent, and in the same manner as if it (in its capacity as a Purchaser) were a direct party thereto; and (f) Each Assignee hereby acknowledges that the Assignors are not making any representations and warranties to the Assignees and have no liabilities or obligations to the Assignees pursuant to the Securities Purchase Agreement, this Agreement or otherwise. This Agreement shall become effective upon the last to occur of (a) the due execution and delivery of this Agreement by all parties hereto, (b) the delivery to each Assignee of certificates representing such number of Additional Securities as are set forth opposite such Assignee's name on Exhibit A hereto, each registered in the name of such Assignee or its nominees, and (c) payment of the Purchase Price Per Security with respect to such amount of Additional Securities by wire transfer of immediately available funds to an account or accounts previously designated by the Company. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Assignors and the Assignees. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 4 IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and delivered in New York, New York, United States of America by its proper and duly authorized officer as of the date first written above. FAMILY BARGAIN CORPORATION By:/S/ WILLIAM W. MOWBRAY ----------------------------------- Name: William Mowbray Title: President & CEO ASSIGNORS: THREE CITIES FUND II, L.P. - ---------- By: TCR Associates, L.P., as General Partner By:/S/ WILLEM F.P. DE VOGEL ----------------------------------- Name: Willem F.P. de Vogel Title: General Partner THREE CITIES OFFSHORE II C.V. By: TCR Offshore Associates, L.P., as General Partner By:/S/ J. WILLIAM UHRIG ----------------------------------- Name: J. William Uhrig Title: General Partner TERFIN INTERNATIONAL, LTD. By:/S/ J. WILLIAM UHRIG ----------------------------------- Name: J. William Uhrig Title: Attorney-In-Fact 5 KLINGENSTEIN CHARITABLE PARTNERS B By:/S/ FREDERICK A. KLINGENSTEIN ----------------------------------- Name: Frederick A. Klingenstein Title: Managing Partner ASSIGNEES: THE BANK OF NEW YORK AS TRUSTEE FOR THE EMPLOYEES RETIREMENT PLAN OF THE BROOKLYN UNION GAS COMPANY By:/S/ EUGENE J. FORAN ----------------------------------- Name: Eugene J. Foran Title: Vice President BOSTON SAFE DEPOSIT & TRUST COMPANY, TRUSTEE FOR US WEST PENSION TRUST By:/S/ ROBERT DAMISH ----------------------------------- Name: Robert Damish Title: Officer BOSTON SAFE DEPOSIT & TRUST COMPANY, TRUSTEE FOR US WEST BENEFIT ASSURANCE TRUST By:/S/ ROBERT DAMISH ----------------------------------- Name: Robert Damish Title: Officer By:/S/ JOHN BORER ----------------------------------- John J. Borer III EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AND JOINDER AGREEMENT SECURITIES Number of ASSIGNEE SECURITIES - -------- ---------- The Employees Retirement Plan of the Brooklyn Union Gas Company 2,500 Boston Safe Deposit & Trust Company, Trustee for US West Pension Trust 1,125 Boston Safe Deposit & Trust Company, Trustee for US West Benefit Assurance Trust 375 John J. Borer III 100 ---------- Total 4,100 EX-4 5 MARCH 1997 SECURITIES PURCHASE AGREEMENT CONFORMED COPY SECURITIES PURCHASE AGREEMENT by and between THREE CITIES FUND II, L.P., THREE CITIES OFFSHORE II L.P. and TERFIN INTERNATIONAL, LTD. and THE PURCHASERS LISTED HEREIN as of March 14, 1997 THIS SECURITIES PURCHASE AGREEMENT is made as of this 14th day of March, 1997, by and between the Purchasers listed on the signature pages hereof (the "Purchasers") and Three Cities Fund II, L.P. ("Fund II"), Three Cities Offshore II L.P. ("Offshore II") and Terfin International, Ltd. ("Terfin", collectively with Fund II and Offshore II, the "Sellers"). W I T N E S S E T H WHEREAS, each of Fund II, Offshore II and Terfin own certain equity securities of Family Bargain Corporation, a Delaware corporation (the "Company"), as more fully described herein (collectively, the "Equity Securities"). WHEREAS, the parties desire for the Purchasers to purchase the Equity Securities in accordance with the terms hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto, each intending to be legally bound, hereby agree as follows: 1. PURCHASE AND SALE OF EQUITY SECURITIES. Fund II, Offshore II and Terfin hereby agree to sell to the Purchasers, and the Purchasers hereby agree to purchase from Fund II, Offshore II and Terfin, the Equity Securities as set forth in Schedule 1 hereof. Fund II, Offshore II and Terfin shall deliver such Equity Securities to the Purchasers, free and clear of all liens, security interests, pledges, claims and encumbrances of every kind, nature and description. 2. CONSIDERATION TO FUND II, OFFSHORE II AND TERFIN. As consideration for the Equity Securities, the Purchasers will deliver on the Closing Date (as defined herein) to Fund II, Offshore II and Terfin the number of shares of Series B Junior Convertible, Exchangeable Preferred Stock, par value $.01 per share (the "Series B Preferred"), of the Company as set forth in Schedule 1 hereto (the "Stock Consideration"). 3. REPRESENTATIONS AND WARRANTIES BY FUND II, OFFSHORE II AND TERFIN. As material inducement for the Purchasers to enter into this Agreement, each of Fund II, Offshore II and Terfin hereby jointly and severally represents and warrants to the Purchasers as follows: a. That it has full corporate or partnership, as the case may be, power and authority to consummate the transactions contemplated by this Agreement; that this Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its terms; that neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated herein in the manner herein provided, will violate any agreement to which it is a party or by which it is bound, or any law, order, decree or judgment applicable to it; and that any authorization, approval or consent of any third party that is required for the lawful execution, delivery and performance of this Agreement by it has been obtained. b. That it transfers the Equity Securities attributed to it on Schedule 1 attached hereto, free and clear of all liens, security interests and claims and encumbrances of every kind, nature and description. 4. REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS. As material inducement for the Sellers to enter into this Agreement, the Purchasers hereby represent and warrant to the Sellers as follows: 2 a. That the Purchasers have full corporate or trust, as the case may be, power and authority to consummate the transactions contemplated by this Agreement. b. That this Agreement constitutes the legal, valid, and binding obligations of the Purchasers, enforceable against them in accordance with their respective terms. c. That neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated herein in the manner provided herein, will violate any agreement to which any Purchaser is a party or by which it or any of its property or assets is bound, or any law, order, decree or judgment applicable to any Purchaser, or any provision of their certificate of incorporation or by-laws or similar organizational documents, and that no authorization, approval or consent of any third party is required for the lawful execution, delivery and performance of this Agreement by any Purchaser. d. That the execution, delivery, and performance of this Agreement has been duly authorized by all necessary corporate or trust action, as the case may be, on the part of each Purchaser. e. That it transfers the Stock Consideration due from and payable by it as listed on Schedule 1 attached hereto, free and clear of all liens, security interests and claims and encumbrances of every kind, nature and description. f. That the Purchasers are purchasing the Equity Securities for purposes of investment and not with a view toward the distribution thereof. 3 5. TERMINATION. This Agreement may be terminated by Fund II, Offshore II or Terfin or the Purchasers, if the Assignment and Assumption and Joinder Agreement (as defined herein) is terminated. 6. DELIVERIES. a. FUND II, OFFSHORE II AND TERFIN DELIVERIES. On the Closing Date, Fund II, Offshore II and Terfin have delivered or caused to be delivered to the Purchasers certificates for the Equity Securities, endorsed by the holder thereof in blank or with stock transfer powers executed by the holder thereof in blank attached. b. PURCHASERS DELIVERY. On the Closing Date, the Purchasers shall deliver to Fund II, Offshore II and Terfin the certificates for the Stock Consideration, endorsed by the holder thereof in blank or with stock powers executed by the holder thereof in blank attached. 7. MISCELLANEOUS. a. INDULGENCES, ETC. Neither the failure nor any delay on the part of any party to execute any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 4 b. CONTROLLING LAW. THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT (INCLUDING, WITHOUT LIMITATION, PROVISIONS CONCERNING LIMITATIONS OF ACTIONS), SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. c. NOTICES. All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received only when personally delivered, or on the next business day when deposited with a reputable overnight courier service, such as Federal Express, for delivery to the intended addressee. All notices shall be addressed as follows: (i) If to the Purchasers, as provided on Schedule 2 hereto; (ii) If to the Sellers: c/o Three Cities Research, Inc. 135 East 57th Street New York, NY 10022 Attn.: J. William Uhrig with a copy to: Paul, Weiss, Rifkind, Wharton & Garrison 1285 Avenue of the Americas New York, New York 10019 Attention: Robert M. Hirsh, Esq. Any person may alter the address to which communications or copies are to be sent by giving notice of such change of address in conformity with the provisions of this 5 subparagraph for the giving of notice, and such alteration shall become effective upon actual receipt. d. BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, personal representatives, successors and assigns, except that no party may assign or transfer its rights nor delegate its duties under this Agreement without the prior written consent of the other parties hereto. e. EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original as against the party whose signature appears thereon, and both of which shall together constitute one and the same instrument. This Agreement shall become binding when one (1) or more counterparts hereof, individually or taken together, shall bear the signatures of each of the parties reflected hereon as the signatories. f. PROVISIONS SEPARABLE. The provisions of this Agreement are independent of and separable from each other, and no provisions shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. g. PARAGRAPH HEADINGS. The Paragraph and subparagraph headings in this Agreement are for convenience of reference only; they form no part of this Agreement and shall not affect its interpretation. h. GENDER, ETC. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any 6 other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate. i. NUMBER OF DAYS. In computing the number of days for purposes of this Agreement, only business days shall be counted. j. EXHIBITS AND SCHEDULES. All Schedules attached hereto are hereby incorporated by reference into, and made a part of, this Agreement. k. ENTIRE AGREEMENT. This Agreement contains the entire understanding among the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein and therein contained. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing. l. CLOSING. Subject to the terms and conditions of this Agreement, the closing (the "Closing") with respect to this Agreement shall occur concurrently with the execution and delivery of the Assignment and Assumption and Joinder Agreement, dated as of March 14, 1997 (the "Assignment and Assumption Agreement"), among the Persons listed on the signature pages thereto under the caption "Assignors", the Persons listed on the signature pates thereto under the caption "Assignees" and the Company, at the offices of Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New York, New York 10019, or at such other date and such other place as the parties hereto shall agree (the "Closing Date"). 7 IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on the date first above written. Purchasers: THE BANK OF NEW YORK AS TRUSTEE FOR THE EMPLOYEES RETIREMENT PLAN OF THE BROOKLYN UNION GAS COMPANY By:/S/ EUGENE J. FORAN ----------------------------------- Name: Eugene J. Foran Title: Vice President BOSTON SAFE DEPOSIT & TRUST COMPANY, TRUSTEE FOR US WEST PENSION TRUST By:/S/ BOB DAMISH ----------------------------------- Name: Bob Damish Title: Officer BOSTON SAFE DEPOSIT & TRUST COMPANY, TRUSTEE FOR US WEST BENEFIT ASSURANCE TRUST By:/S/ BOB DAMISH ----------------------------------- Name: Bob Damish Title: Officer By:/S/ JOHN BORER ----------------------------------- John J. Borer III 8 Sellers: THREE CITIES FUND II, L.P. By: TCR Associates, L.P., as General Partner By: /S/ WILLEM F.P. DE VOGEL ----------------------------------- Name: Willem F.P. de Vogel Title: General Partner THREE CITIES OFFSHORE II C.V. By: TCR Associates Offshore, L.P., as General Partner By: /S/ J. WILLIAM UHRIG ----------------------------------- Name: J. William Uhrig Title: General Partner TERFIN INTERNATIONAL LTD. By: /S/ J. WILLIAM UHRIG ----------------------------------- Name: J. William Uhrig Title: Attorney-In-Fact 9 SCHEDULE 1 EQUITY SECURITIES SOLD AND CONSIDERATION THEREFOR - -------------------------------------------------
Shares of Common Series B Stock Preferred Received SELLER SOLD AS CONSIDERATION - ------ ---- ---------------- Three Cities Fund II, L.P. 37,916 125 Three Cities Offshore II C.V 64,121 212 Terfin International, Ltd. 25,509 84 ------- ------- TOTAL 127,546 421 EQUITY SECURITIES PURCHASED Shares of Common Series B Stock Preferred Paid PURCHASER BOUGHT AS CONSIDERATION - --------- ------ ---------------- The Bank of New York as Trustee for the Employee Retirement Plan of the Brooklyn Union Gas Company 77,772 257 Boston Safe Deposit & Trust Company, Trustee for US WEST Pension Trust 34,997 116 Boston Safe Deposit & Trust Company, Trustee for US WEST Benefit Assurance Trust 11,666 38 John J. Borer III 3,111 10 ------- ------- TOTAL 127,546 421
SCHEDULE 2 ADDRESS OF PURCHASERS The Employees Retirement Plan of the Brooklyn Union Gas Company c/o Thomas Riordan Brooklyn Union Gas Co. One Metro Tech Center Brooklyn, NY 11201-3950 Boston Safe Deposit & Trust Company, Trustee for US West Pension Trust c/o John Picone Rogers Casey Alternative Investments One Parklands Drive Darien, CT 06820 Boston Safe Deposit & Trust Company, Trustee for US West Benefit Assurance Trust c/o John Picone Rogers Casey Alternative Investments One Parklands Drive Darien, CT 06820 John J. Borer III Rodman & Renshaw Two World Financial Center Tower B, 30th Floor New York, NY 10281 -----END PRIVACY-ENHANCED MESSAGE-----