Specific performance

On December 2, 2021, in the Delaware Court of Chancery (the “Court”), C.A. No. 2021-0854-SG, the Court denied Republic Bank & Trust Company’s (the “Bank”) expedited motion for summary judgment seeking the remedy of specific performance from Green Dot Corporation (“Green Dot”) related to the sale to Green Dot of substantially all of the assets and operations of the Bank’s Tax Refund Solutions business (the “Sale Transaction”). As a result of this ruling, the Bank does not expect the Sale Transaction to be consummated. The ruling does not otherwise impact the Bank’s lawsuit against Green Dot alleging breach of contract with respect to the Sale Transaction.

As the basis for its ruling denying specific performance as a remedy in this case, the Court held that the risk of regulatory action, including criminal and civil penalties, against Green Dot, its officers, directors, employees, and agents in the event of specific performance outweighed the harm to the Bank resulting from Green Dot’s alleged breach of contract. As a result of the Court’s denial of specific performance as a remedy, the Bank will continue to pursue damages and other equitable relief against Green Dot for its existing breach of contract lawsuit in the Court.

6. Concurrently with the execution and delivery of this letter agreement, (a) B. Riley and the VRTO Guarantor, are executing and delivering to the Company a Limited Guarantee, dated as of the date hereof (the “Limited Guarantee”), in favor of the Company in respect of certain of Parent’s and Merger Sub’s obligations under the Merger Agreement, in each case pursuant to the terms and conditions of, and subject to the limitations of, the Merger Agreement and the Limited Guarantee and (b) the Buddy’s Equityholder, Parent and Vintage are entering into the Buddy’s Contribution Agreement, of which the Company is an express third party beneficiary. The Company’s remedies against B. Riley and the VRTO Guarantor under the Limited Guarantee, the Company’s remedies against the Buddy’s Equityholder under the Buddy’s Contribution Agreement, the Company’s rights to specific performance under this letter agreement and the Company’s remedies against Parent and Merger Sub under the Merger Agreement shall be, and are intended to be, the sole and exclusive remedies available to the Company or any of its Affiliates against (i) Vintage, B. Riley (including in its capacity as the BR Guarantor), Parent or Merger Sub, (ii) the VTRO Guarantor (including in its capacity as the Buddy’s Equityholder) and (iii) any former, current or future equityholders, controlling persons, directors, officers, employees, agents, advisors, Affiliates, members, managers, general or limited partners, or assignees of Vintage, B. Riley (including in its capacity as BR Guarantor), Parent, Merger Sub, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder) or any former, current or future equityholder, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee (other than a permitted assignee of a Commitment hereunder) of any of the foregoing (other than the Buddy’s Equityholder under the Buddy’s Contribution Agreement, the BR Guarantor and the VRTO Guarantor pursuant and subject to the terms of the Limited Guarantee, Vintage and B. Riley pursuant to and subject to the terms of this letter agreement, and Parent and Merger Sub pursuant to and subject to the terms of the Merger Agreement) (those persons and entities described in clause (iii), excluding Vintage, B. Riley (including its capacity as BR Guarantor) Parent, Merger Sub, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), each being referred to as a “Non-Recourse Parent Party”) in respect of any liabilities or obligations arising under, or in connection with, this letter agreement or the Merger Agreement or any of the transactions contemplated hereby or thereby, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by a Commitment Party’s breach of its obligations under this letter agreement. Under no circumstance shall Vintage be deemed to be a Non-Recourse Parent Party. Notwithstanding anything to the contrary set forth in this paragraph or in the Limited Guarantee, the Company, as the express third party beneficiary hereunder on the terms, and subject to the conditions, set forth in paragraph 4 of this letter agreement, may cause Parent and Merger Sub to, or to directly, cause the Commitments to be funded as, and only to the extent, permitted by the exercise of the Company’s rights under Section 9.08 of the Merger Agreement or on the terms, and subject to the conditions of paragraphs 1 and 3 of this letter agreement. Notwithstanding anything to the contrary contained herein or in the Limited Guarantee, under no circumstance shall the Company be permitted or entitled to receive both (x) a grant of specific performance and (y) the Parent Termination Fee and/or any money damages.

7. Each Commitment Party’s several, and not joint, obligation to fund its respective Commitment will terminate and expire on the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with the terms thereof, (b) the date as of which Vintage or its Affiliates assigns to Parent an amount of funds and equity interests of Buddy’s equal to the Vintage Commitment in accordance with and in full satisfaction of its obligations under the terms hereof, to the extent not revoked, rescinded or terminated, (c) with respect to B. Riley, the date on which B. Riley or its Affiliates assigns to Vintage an amount of funds equal to the BR Commitment, (d) the date on which any claim is brought by the Company under, or any legal action, suit or proceeding is brought by the Company with respect to the Limited Guarantee (as defined below), B. Riley (in its capacity as BR Guarantor (as defined in the Limited Guarantee)), Vintage RTO, L.P., a Delaware limited partnership (the “VRTO Guarantor”), or any Guarantor Affiliate (as defined in the Limited Guarantee) or (e) the date on which any other claim is brought under, or legal action, suit or proceeding is initiated against Vintage or any Affiliate thereof, the B. Riley or any Affiliate thereof, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder (as defined below)) or any Affiliate thereof in connection with this letter, the Limited Guarantee, the Merger Agreement, the Buddy’s Contribution Agreement (as defined below) or any transaction contemplated hereby or thereby or otherwise relating thereto, other than a claim for specific performance under and in accordance with the contribution agreement (the “Buddy’s Contribution Agreement”) to be entered into between the VRTO Guarantor as the Buddy’s Equityholder (the “Buddy’s Equityholder”), Parent and Vintage (a “Buddy’s Contribution Claim”) or a claim for specific performance under and in accordance with the terms of the Merger Agreement or this letter agreement) (such earliest date, the “Commitment Expiration Date”). From and after the Commitment Expiration Date, none of Vintage, B. Riley, VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), any former, current and future equityholders, controlling persons, directors, officers, employees, agents, advisors, Affiliates, members, managers, general or limited partners or assignees of Vintage, B. Riley, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), or any Non-Recourse Parent Party (as defined below) shall have any further liability or obligation to any Person hereunder.

8. This letter agreement shall inure to the benefit of and be binding upon Parent, Vintage, B. Riley and their respective successors and permitted assigns. Each Commitment Party severally, and not jointly, acknowledges that the Company is an express third party beneficiary hereof, entitled to specifically enforce the several, and not joint, obligations of each Commitment Party, against such Commitment Party, to the full extent hereof in connection with the Company’s exercise of its specific performance rights under Section 9.08 of the Merger Agreement and, in connection therewith, the Company has the right to seek specific performance or equitable relief to cause Parent and Merger Sub to cause, or to directly cause, each Commitment Party to severally, and not jointly, fund, directly or indirectly, its respective Commitment, as, and only to the extent permitted by, this letter agreement, in each case, when all of the conditions to funding such Commitment set forth herein have been satisfied and as otherwise contemplated by the exercise of the Company’s rights under Section 9.08 of the Merger Agreement, and the Company shall have no other rights or remedies hereunder. Each Commitment Party accordingly, subject to Section 9.08 of the Merger Agreement, severally, and not jointly, agrees not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that the Company has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Each Commitment Party further severally, and not jointly, agrees that the Company shall not be required to post a bond or undertaking in connection with such order or injunction sought in accordance with the Company’s specific performance rights under Section 9.08 of the Merger Agreement or this letter agreement. Each Commitment Party severally, and not jointly, acknowledges and agrees that (a) Parent is delivering a copy of this letter agreement to the Company and that the Company is relying on the several, and not joint, obligations and commitments of the Commitment Parties hereunder in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the provisions set forth in Section 8.03(c) of the Merger Agreement and the Limited Guarantee (as defined below) (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of such Commitment Party’s several, and not joint, obligations to fund its respective Commitment in accordance with the terms of this letter agreement and (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement, to cause Parent and Merger Sub to cause, or to directly cause, such Commitment Party to severally, and not jointly, fund, directly or indirectly, its respective Commitment under this letter agreement, and to cause Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement under Section 9.08 of the Merger Agreement and (c) the right of specific performance under this letter agreement and Section 9.08 of the Merger Agreement are an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.08 of the Merger Agreement and this letter agreement shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under the Merger Agreement and/or this letter agreement shall not restrict, impair or otherwise limit the Company from, in the alternative, terminating the Merger Agreement and collecting any amounts owed under the Guaranteed Obligations, as applicable; provided, that under no circumstances shall the Company be permitted or entitled to receive both (x) a grant of specific performance under Section 9.08 of the Merger Agreement and/or this letter agreement and (y) payment of the Parent Termination Fee and/or money damages.

Public Rights. When the Registration Statement becomes effective under the Act, when the offering is completed as contemplated by the Registration Statement, and assuming the due authorization, execution and delivery of the Public Rights by the Company, the Public Rights included in the Units will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution provision may be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

The Company acknowledges the Staff’s comment and recognizes the importance of providing appropriate disclosure regarding its variable compensation program. In determining what disclosures should be made, the Company carefully considers the materiality and benefit of the information to investors versus the competitive harm that might come to the Company (and ultimately to the Company’s stockholders) as a result of such disclosures. In this case, for reasons of materiality to investors and competitive harm to the Company, the Company does not consider it appropriate to disclose the specific performance targets set by the Company’s Compensation Committee for purposes of determining the payouts under the Company’s executive bonus program for fiscal 2013 and fiscal 2014. The Company believes its position is supported both by Instruction 4 to Item 402(b) of Regulation S-K and Question 118.04 of the Regulation S-K Compliance and Disclosure Interpretations (“CD&I 118.04”).

In consideration of the facts and circumstances discussed above, including the need for investors to be provided with adequate information about the Company’s variable compensation program, the lack of materiality of information regarding the Company’s specific performance target goals and the need for the Company to protect its confidential competitive information from disclosure, the Company respectfully submits that the substantial negative impact on the Company that would be likely to result from a disclosure of competitive, confidential information regarding the Company’s performance targets.