SHAREHOLDER SUPPORT AND VOTING AGREEMENT BY AND AMONG GENERAL MOTORS HOLDINGS LLC, GOALIE TEXAS HOLDCO INC. LEUCADIA NATIONAL CORPORATION PHLCORP, INC., BALDWIN ENTERPRISES, INC., BEI ARCH HOLDINGS, LLC AND BEI-LONGHORN, LLC DATED AS OF JULY 21, 2010
Exhibit
1.1
BY
AND AMONG
GENERAL
MOTORS HOLDINGS LLC,
GOALIE
TEXAS HOLDCO INC.
LEUCADIA
NATIONAL CORPORATION
PHLCORP,
INC.,
XXXXXXX
ENTERPRISES, INC.,
BEI
ARCH HOLDINGS, LLC
AND
BEI-LONGHORN,
LLC
DATED
AS OF JULY 21, 2010
THIS SHAREHOLDER SUPPORT AND VOTING
AGREEMENT, dated as of July 21, 2010 (this “Agreement”),
is entered into by and among General Motors Holdings LLC, a Delaware
limited liability company (the “Parent”),
Goalie Texas Holdco Inc., a Texas corporation
and a direct wholly owned subsidiary of Parent (“Merger
Sub”, and together with Parent, the “Goalie
Parties”) and Leucadia National Corporation, Phlcorp, Inc., Xxxxxxx
Enterprises, Inc., BEI Arch Holdings, LLC and BEI-Longhorn, LLC (collectively,
the “Shareholders”).
W
I T N E S S E T H:
Whereas,
concurrently with the execution of this Agreement, AmeriCredit Corp., a Texas
corporation (the “Company”)
and the Goalie Parties are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the “Merger
Agreement”), pursuant to which, among other things, Merger Sub will merge
with and into the Company (the “Merger”),
with the Company continuing as the surviving corporation, and each outstanding
share of common stock, par value $0.01 per share, of the Company (the “Company Common
Stock”) will be converted into the right to receive the Merger
Consideration (as defined in the Merger Agreement);
Whereas,
as of the date hereof, the Shareholders are the beneficial owners in the
aggregate of, and have the right to vote and dispose of, 33,900,440 shares of
Company Common Stock (collectively, the “Existing Common
Stock”); and
Whereas,
as a material inducement to the Goalie Parties entering into the Merger
Agreement, a copy of which has been provided to the Shareholders, the
Shareholders have agreed to enter into this Agreement and to abide by the
covenants and obligations with respect to the Covered Common Stock (as
hereinafter defined).
Now
Therefore, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE
1
GENERAL
1.1 Defined Terms. The following
capitalized terms, as used in this Agreement, shall have the meanings set forth
below. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
“Covered Common
Stock” means, with respect to each Shareholder, such Shareholder’s
Existing Common Stock, together with any Company Common Stock that such
Shareholder acquires on or after the date hereof.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
1
“Lien”
means any mortgage, lien, charge, restriction (including restrictions on
transfer), pledge, security interest, option, right of first offer or refusal,
preemptive right, put or call option, lease or sublease, claim, right of any
third party, covenant, right of way, easement, encroachment or
encumbrance.
“Person”
means any individual, corporation, limited liability company, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity, or any group comprised of two or more of the
foregoing.
“Transfer”
means, directly or indirectly, to sell, transfer, assign, pledge, encumber,
hypothecate or similarly dispose of (by merger (including by conversion into
securities or other consideration), by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or otherwise), either
voluntarily or involuntarily, or to enter into any contract, option or other
arrangement or understanding with respect to the voting of or sale, transfer,
assignment, pledge, encumbrance, hypothecation or similar disposition of (by
merger, by tendering into any tender or exchange offer, by testamentary
disposition, by operation of law or otherwise) or to enter into any derivative
or similar transactions or arrangements whereby a portion or all of the economic
interest in, or risk of loss or opportunity for gain with respect to, Company
Common Stock is transferred or shifted to another Person.
ARTICLE
2
VOTING
2.1 Agreement to Vote Covered Common
Stock. Each Shareholder hereby irrevocably and unconditionally
agrees that during the term of this Agreement, at any meeting of the
shareholders of the Company, however called, including any adjournment or
postponement thereof, Shareholder shall, in each case to the fullest extent that
any of the Covered Common Stock is entitled to vote thereon:
(a) appear at
each such meeting or otherwise cause the Covered Common Stock to be counted as
present thereat for purposes of calculating a quorum; and
(b) vote (or
cause to be voted), in person or by proxy, all of the Covered Common Stock (i)
in favor of the adoption of the Merger Agreement, any transactions contemplated
by the Merger Agreement and any other action reasonably requested by Parent in
furtherance thereof, submitted for the vote of shareholders of the Company; (ii)
against any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
or any of its Subsidiaries contained in the Merger Agreement, to the extent any
such breach would result in a failure of any of the conditions to the
consummation of the Merger set forth in Section 6.1 or Section 6.3 of the Merger
Agreement to be satisfied; and (iii) against any action, agreement or
transaction that would impede, interfere with, delay, postpone, discourage,
frustrate the purposes of or adversely affect the Merger or the other
transactions contemplated by the Merger Agreement;
2
provided,
however, that, notwithstanding the foregoing, the Shareholders shall not be
required to vote in favor of the Merger at the Company Meeting if, and only if,
(x) the Board (or the Special Committee, as the case may be) effects a Change in
Board Recommendation because of a Superior Proposal and (y) the Company Meeting
occurs as contemplated by the last sentence of Section 5.4(b) of the Merger
Agreement for the purpose of voting on the Merger.
2.2 No Inconsistent
Agreements. Each Shareholder hereby represents, covenants and
agrees that, except for this Agreement, such Shareholder (a) is not subject to,
and shall not enter into at any time while this Agreement remains in effect, any
voting agreement or voting trust with respect to the Covered Common Stock (other
than agreements that may not be enforced during the term of this Agreement), (b)
has not granted, and shall not grant at any time while this Agreement remains in
effect, a proxy, consent or power of attorney with respect to the Covered Common
Stock, and (c) has not taken and shall not knowingly take any action that would
make any representation or warranty of Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling Shareholder from
performing any of its obligations under this Agreement.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
3.1 Representations and Warranties of
Shareholder. Each Shareholder (except to the extent otherwise
provided herein) hereby represents and warrants to the Goalie Parties as
follows:
(a) Authorization; Validity of Agreement;
Necessary Action. Such Shareholder has the requisite power and
authority and/or capacity to execute and deliver this Agreement, to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery by such Shareholder of this
Agreement, the performance by it of the obligations hereunder and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by such Shareholder and no other actions or proceedings on the part
of such Shareholder to authorize the execution and delivery of this Agreement,
the performance by such Shareholder of the obligations hereunder or the
consummation of the transactions contemplated hereby are
required. This Agreement has been duly executed and delivered by such
Shareholder and, assuming the due authorization, execution and delivery of this
Agreement by the Goalie Parties, constitutes a legal, valid and binding
agreement of such Shareholder, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equitable principles.
(b) Ownership. One or more of the
Shareholders beneficially own all of the Existing Common Stock. Such
Shareholder is the beneficial owner of and has good and marketable title to its
Existing Common Stock as described in this Agreement, free and clear of all
Liens (other than pursuant to this Agreement and restrictions on Transfers
arising under applicable securities laws). Such Shareholder will be
the beneficial owner of and have good and marketable title to its Covered Common
Stock from the date hereof through and on the Closing Date, free and clear of
all Liens (other than pursuant to this Agreement and restrictions
on
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Transfers
arising under applicable securities laws). Except for the Existing
Common Stock, there is no other Company Common Stock legally or beneficially
owned by such Shareholder. Such Shareholder has and will have at all
times through the Closing Date sole voting power (including the right to control
such vote as contemplated herein), sole power of disposition, sole power to
issue instructions with respect to the matters set forth in Article 2 hereof,
and sole power to agree to all of the matters set forth in this Agreement, in
each case with respect to the Existing Common Stock and with respect to the
Covered Common Stock at all times through the Closing Date.
(c) No
Violation. Neither the execution and delivery of this
Agreement by such Shareholder nor the performance by such Shareholder of its
obligations under this Agreement will (i) result in, give rise to or constitute
a violation or breach of or a default (or any event which with notice or lapse
of time or both would become a violation, breach or default) under, or give to
others any rights of termination, purchase, amendment, acceleration or
cancellation with respect to, or result in the creation of a Lien on, any of the
Covered Common Stock or any other material assets of such Shareholder pursuant
to any of the terms of any understanding, agreement, or other instrument or
obligation to which such Shareholder is a party or by which such Shareholder,
any of the Covered Common Stock, or any other assets of the such Shareholder are
bound, (ii) violate any judgments, decrees, injunctions, rulings, awards,
settlements, stipulations or orders (collectively, “Orders”)
or laws applicable to such Shareholder or any of its properties, rights or
assets or (iii) result in a violation or breach of or conflict with its
organizational and governing documents.
(d) Consents and
Approvals. No consent, approval, Order or authorization of, or
registration, declaration or filing with, any governmental authority is
necessary to be obtained or made by such Shareholder in connection with such
Shareholder’s execution, delivery and performance of this Agreement or the
consummation by such Shareholder of the transactions contemplated hereby, except
for any reports under Sections 13(d) and 16 of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby.
(e) Reliance by the
Company. Such Shareholder understands and acknowledges that
the Goalie Parties are entering into the Merger Agreement in reliance upon
Shareholder’s execution and delivery of this Agreement and the representations,
warranties, covenants and obligations of Shareholder contained
herein.
3.2 Representations and Warranties of the
Goalie Parties. The Goalie Parties hereby represent and
warrant to each Shareholder that the execution and delivery of this Agreement by
the Goalie Parties and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the Goalie
Parties.
ARTICLE
4
OTHER
COVENANTS
4.1 Restrictions on Transfers, Other
Actions. Each Shareholder agrees that it shall
not: (a) Transfer any of the Covered Common Stock, beneficial
ownership thereof or any other interest therein; (b) enter into any agreement,
arrangement or understanding, or take any other
4
action,
that violates or conflicts with or would reasonably be expected to violate or
conflict with, or result in or give rise to a violation of or conflict with,
Shareholder’s representations, warranties, covenants and obligations under this
Agreement; (c) take any action that could restrict or otherwise affect
Shareholder’s legal power, authority and right to comply with and perform its
covenants and obligations under this Agreement; or (d) take any action with
respect to the debt or convertible securities of the Company that would be
reasonably likely to prevent or materially delay or materially impair the
ability of the Company to perform its obligations under the Merger Agreement or
to consummate the Merger.
4.2 No
Solicitation. Without giving effect to Sections 5.3(c)-(g) of
the Merger Agreement, the provisions of Section 5.3 of the Merger Agreement
applicable to the Company shall apply mutatis mutandis to each of
the Shareholders.
4.3 Waiver of Dissenters’
Rights. Each Shareholder hereby irrevocably and
unconditionally waives, and agrees not to exercise, assert or perfect, any
rights of dissent and appraisal under Section 10.354 of the Texas Business
Organizations Code.
4.4 Further Assurances;
Cooperation. From time to time, at Parent’s request and
without further consideration, each Shareholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or advisable to effect the actions and consummate the transactions
contemplated by this Agreement.
ARTICLE
5
MISCELLANEOUS
5.1 Termination. This
Agreement shall remain in effect until the earliest to occur of (a) the
Effective Time, (b) the termination of the Merger Agreement in accordance with
its terms (including after any extension thereof), and (c) the written agreement
of the Shareholders and the Goalie Parties to terminate this
Agreement. After the occurrence of such applicable event, this
Agreement shall terminate and be of no further force or
effect. Nothing in this Section 5.1, and no termination of this
Agreement shall relieve or otherwise limit any party of liability for any breach
of this Agreement occurring prior to such termination.
5.2 No Ownership
Interest. Nothing contained in this Agreement shall be deemed
to vest in Parent or Merger Sub any direct or indirect ownership or incidence of
ownership of or with respect to any Covered Common Stock. All rights,
ownership and economic benefit relating to the Covered Common Stock shall remain
vested in and belong to the Shareholders, and Parent and Merger Sub shall have
no authority to direct Shareholder in the voting or disposition of any of the
Covered Common Stock, except as otherwise provided herein.
5.3 Publicity. Each
Shareholder hereby permits the Goalie Parties and the Company to include and
disclose in the Proxy Statement and in such other schedules, certificates,
applications, agreements or documents as any such entities reasonably determine
to be necessary or appropriate in connection with the consummation of the Merger
and the transactions contemplated by the Merger Agreement, such Shareholder’s
identity and ownership of the
5
Covered
Common Stock and the nature of such Shareholder’s commitments, arrangements and
understandings pursuant to this Agreement.
5.4 Shareholder
Capacity. Parent and Merger Sub acknowledge that each
Shareholder is entering into this Agreement only in its capacity as a
shareholder of the Company and nothing herein shall limit or affect any actions
taken by any individual in such individual’s capacity as a director of the
Company, nor shall any action taken in any such individual’s capacity as a
director be deemed a breach of this Agreement.
5.5 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given when delivered personally or sent via facsimile (receipt confirmed)
or on the first Business Day following the date of dispatch if delivered by a
recognized next day courier service. All notices hereunder shall be
delivered as set forth below or pursuant to such other instructions as may be
designated in writing by the party to receive such notice:
If to the
Goalie Parties, to:
General
Motors Holdings LLC
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Facsimile: 313.665.4960
Attention: Xxxxxx
Xxxxxxxx
With
copies (which shall not constitute notice) to:
Xxxxxxx
Xxxxx LLP
0000 Xxxx
Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx X. Xxxxxxx
Facsimile: 214.659.4401
Xxxxxxx X.
Xxxxxxx
Facsimile: 713.238.7235
If to the
Shareholders, to:
Leucadia
National Corporation
000 Xxxx
Xxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: 212.598.3242
Attention: Xxxxxx
X. Orlando, Chief Financial Officer
With
copies (which shall not constitute notice) to:
Xxxx
Xxxxxxx & Xxxxxx, LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: 212.310.8007
Attention: Xxxxxx
X. Xxxxxxxxx
0
5.6 Interpretation. The
words "hereof," "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section references are references to
this Agreement unless otherwise specified. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." The meanings
given to terms defined herein shall be equally applicable to both the singular
and plural forms of such terms. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement is the product of
negotiation by the parties having the assistance of counsel and other
advisers. It is the intention of the parties that this Agreement not
be construed more strictly with regard to one party than with regard to the
others.
5.7 Counterparts. This
Agreement may be executed by facsimile and in counterparts, all of which shall
be considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
5.8 Entire
Agreement. This Agreement and, solely to the extent of the
defined terms referenced herein, the Merger Agreement, embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written and oral, that may have related
to the subject matter hereof in any way.
5.9 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware (other than with respect to matters governed by the Texas
Business Organizations Code, with respect to which such laws apply) that are
applicable to contracts entered into and to be performed solely in the State of
Delaware.
(b) In
addition, each of the parties hereto irrevocably agrees that any legal action or
proceeding with respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder brought by the other
party hereto or its successors or assigns, shall be brought and determined
exclusively in the Court of Chancery in the State of Delaware (provided that, in
the event subject matter jurisdiction is unavailable in or declined by the Court
of Chancery, then all such claims shall be brought, heard and determined
exclusively in any other federal or state court sitting in the State of
Delaware. Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated hereby in any court other than
the aforesaid courts. Each of the parties hereto hereby irrevocably
waives, and agrees not to assert, by way of motion, as a defense, counterclaim
or otherwise, in any action or proceeding with respect to this Agreement, (i)
any claim that it is not personally subject to the jurisdiction of the above
named courts for any reason other than the failure to serve, (ii) any claim that
it or its property is exempt or immune from
7
jurisdiction
of any such court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and (iii) to the
fullest extent permitted by the applicable law, any claim that (A) the suit,
action or proceeding in such court is brought in an inconvenient forum, (B) the
venue of such suit, action or proceeding is improper or (C) this Agreement, or
the subject matter hereof, may not be enforced in or by such
courts.
(c) EACH OF
THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.10 Amendment;
Waiver. This Agreement may not be amended except by an
instrument in writing signed by the Goalie Parties and the
Shareholders. Each party may waive any right of such party hereunder
by an instrument in writing signed by such party and delivered to the Goalie
Parties and the Shareholders.
5.11 Remedies.
(a) Each
party hereto acknowledges that monetary damages would not be an adequate remedy
in the event that any covenant or agreement in this Agreement is not performed
in accordance with its terms, and it is therefore agreed that, in addition to
and without limiting any other remedy or right it may have, the non-breaching
party will have the right to an injunction, temporary restraining order or other
equitable relief in any court of competent jurisdiction enjoining any such
breach and enforcing specifically the terms and provisions
hereof. Each party hereto agrees not to oppose the granting of such
relief in the event a court determines that such a breach has occurred, and to
waive any requirement for the securing or posting of any bond in connection with
such remedy.
(b) All
rights, powers and remedies provided under this Agreement or otherwise available
in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise or beginning of the exercise of any thereof by any party shall
not preclude the simultaneous or later exercise of any other such right, power
or remedy by such party.
5.12 Severability. Any
term or provision of this Agreement which is determined by a court of competent
jurisdiction to be invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction, and
if any provision of this Agreement is determined to be so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable, in all cases so long as neither the economic nor legal substance of
the transactions contemplated hereby is affected in any manner adverse to any
party or its equityholders. Upon any such determination, the parties
shall negotiate in good faith in an effort to agree upon a suitable and
equitable substitute provision to effect the original intent of the parties as
closely as possible and to the end that the transactions contemplated hereby
shall be fulfilled to the maximum extent possible.
8
5.13 Successors and Assigns; No Third
Party Beneficiaries. Neither this Agreement nor any of the rights or
obligations of any party under this Agreement shall be assigned, in whole or in
part (by operation of law or otherwise), by any party without the prior written
consent of the other parties hereto. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended
to confer on any Person other than the parties hereto or the parties’ respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
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In Witness
Whereof, the parties hereto have caused this Agreement to be signed
(where applicable, by their respective officers or other authorized Person
thereunto duly authorized) as of the date first written above.
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Parent:
GENERAL
MOTORS HOLDINGS LLC
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By:
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
Chairman,
Corporate
Strategy and Business
Development
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Merger Sub:
GOALIE
TEXAS HOLDCO INC.
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By:
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Name:
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Xxxxxx
Xxxxxx
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Title:
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President
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Shareholders:
LEUCADIA
NATIONAL CORPORATION
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By:
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Name:
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Title:
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PHLCORP,
INC.
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By:
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Name:
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Title:
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XXXXXXX
ENTERPRISES, INC.
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By:
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Name:
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Title:
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BEI
ARCH HOLDINGS, LLC
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By:
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Name:
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Title:
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BEI-LONGHORN,
LLC
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By:
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Name:
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Title:
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