EXHIBIT 99,2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), dated as of December 15,
2003, is entered into by and among LIBERTE INVESTORS INC., a Delaware
corporation ("LBI"), USAUTO HOLDINGS, INC., a Delaware corporation ("USAuto"),
Xxxxxx'x Xxxx/Ford, Ltd., a Texas limited partnership ("Xxxxxx'x Xxxx"), and
Turtle Creek Revocable Trust ("Turtle Creek"). Xxxxxx'x Xxxx and Turtle Creek
are referred to herein individually as a "Stockholder" and collectively as the
"Stockholders."
WITNESSETH:
WHEREAS, each Stockholder beneficially owns the shares of common stock,
par value $.01 per share, of LBI (the "LBI Common Stock") set forth opposite
such Stockholder's name on Exhibit A hereto;
WHEREAS, LBI and USAuto are parties to that certain Agreement and Plan
of Merger, dated December 15, 2003 (the "Merger Agreement"), by and among LBI,
USAH Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of LBI
("Merger Sub"), USAuto and the stockholders of USAuto (the "USAuto
Stockholders"), pursuant to which USAuto will merge with and into Merger Sub
(the "Merger");
WHEREAS, as a condition to the willingness of USAuto to enter into the
Merger Agreement, USAuto has requested that each Stockholder agree, and in order
to induce USAuto to enter into the Merger Agreement, each Stockholder has
agreed, among other things, (i) with respect to certain questions put to
stockholders of LBI for a vote, to vote all shares of LBI Common Stock owned,
whether beneficially, of record or both, by such Stockholder on the date hereof
and all other shares of LBI Common Stock or voting capital stock of LBI or
rights with respect thereto acquired (either beneficially, of record or both) by
such Stockholder after the date hereof whether upon the exercise of options or
warrants or conversion of convertible securities or otherwise (collectively the
"LBI Voting Shares"), in each case in accordance with the terms and conditions
of this Agreement, and (ii) in the event a Stockholder should fail to vote its
LBI Voting Shares in accordance with this Agreement, to appoint USAuto as such
Stockholder's proxy to vote all of the LBI Voting Shares of such Stockholder in
accordance with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder
hereby represents and warrants to LBI and USAuto as follows:
(a) Title to the Shares. Such Stockholder is the beneficial owner of
the number of shares of LBI Common Stock set forth opposite such Stockholder's
name on Exhibit A of this Agreement and has exclusive power to vote such shares
on all matters submitted to
holders of shares of LBI Common Stock. Such Stockholder does not have any rights
of any nature to acquire any additional shares of LBI Common Stock except as set
forth opposite such Stockholder's name on Exhibit B of this Agreement. Each
Stockholder owns all of such shares of LBI Common Stock free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on such Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever, and, except as provided or described in
this Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to any of such shares.
(b) Authority Relative to this Agreement. Such Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of such
Stockholder. This Agreement has been duly and validly executed and delivered by
such Stockholder and, assuming the due authorization, execution and delivery by
USAuto, constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms (i) except as
such enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights generally
and (ii) subject to general principles of equity.
(c) No Conflict. The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder
will not, (i) require any consent, approval, authorization or permit of, or
filing with or notification to, any governmental or regulatory authority,
domestic or foreign by such Stockholder or (ii) conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to such Stockholder.
2. Covenants of Stockholders. Each Stockholder hereby covenants and
agrees that, during the time this Agreement is in effect, except as otherwise
specifically contemplated by this Agreement, such Stockholder shall not, and
shall not offer or agree to, sell, transfer, tender, assign, hypothecate or
otherwise dispose of, or create or permit to exist any security interest, lien,
claim, pledge, option, right of first refusal, agreement, limitation on such
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Voting Shares, except in each case, unless the
transferee agrees in writing to be bound by the terms and conditions of this
Agreement to the same extent as the transferor.
3. Voting Agreement; Proxy of Stockholders.
(a) Voting Agreement.
(i) Each Stockholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of LBI, however
called, and in any action by written consent of the stockholders of LBI,
such Stockholder shall: (i) vote such Stockholder's LBI Voting Shares in
favor of the following matters which are to be submitted to the
stockholders of LBI in connection with the transactions contemplated by
the Merger Agreement: (A) the issuance of up to 14,000,000 shares of LBI
Common
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Stock as partial consideration under the Merger Agreement (as amended from
time to time), (B) the proposed amendment and restatement of LBI's
certificate of incorporation, (C) the proposed amendment to LBI's 2002
Long Term Incentive Plan to increase the number of shares reserved for
issuance thereunder, and (D) the election of two persons to LBI's Board of
Directors; and (ii) vote the LBI Voting Shares against any action or
agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of LBI under
the Merger Agreement or which is reasonably likely to result in any
conditions to LBI's obligations under the Merger Agreement not being
fulfilled. Each of the Stockholders may vote on all issues other than
those specified in this Section 3(a) that may come before a meeting of the
stockholders of LBI in such Stockholder's sole discretion, provided that
such vote is not inconsistent with the purposes of this Agreement.
(ii) Notwithstanding subsection 3(a)(i) above: (A) the Stockholders
shall not be required to comply with any of the provisions of such
subsection 3(a)(i) if (1) USAuto is in material breach of the Merger
Agreement, (2) in satisfaction of its fiduciary duties, the Board of
Directors of LBI withdraws its recommendation that the stockholders of LBI
approve the Merger and/or the Rights Offering, or (3) LBI is in breach of
any of the provisions of subsection 3(a)(ii)(B); and (B) LBI shall not (1)
waive any material breach of the Merger Agreement, (2) waive any material
term or condition of the Merger Agreement or (3) enter into any material
amendment to the Merger Agreement, in each case without the prior written
consent of each Stockholder (which consent shall not be unreasonably
withheld).
(b) Irrevocable Proxy. Each Stockholder agrees that, in the event such
Stockholder shall fail to comply with the provisions of Section 3(a) hereof,
such failure shall result, without any further action by such Stockholder, in
the irrevocable appointment of USAuto as the attorney-in-fact and proxy of such
Stockholder pursuant to the provisions of Delaware law, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to, the LBI Voting Shares that such Stockholder is entitled to vote at
any meeting of stockholders of LBI (whether annual or special and whether or not
an adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, solely on the matters and in the manner specified in Section 3(a)
hereof. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN
INTEREST. Such Stockholder hereby revokes, effective upon the execution and
delivery of the Merger Agreement by the parties thereto, all other proxies and
powers of attorney with respect to such Stockholder's LBI Voting Shares that
such Stockholder may have heretofore appointed or granted and no subsequent
proxy or power of attorney directly relating to the issues specified in Section
3(a) (except in furtherance of such Stockholder's obligations under Section 3(a)
hereof) shall be given or written consent executed (and if given or executed,
shall not be effective) by such Stockholder with respect thereto so long as this
Agreement remains in effect.
(c) Termination. This Agreement shall terminate on the date (the
"Termination Date") that is the earlier of (a) the Closing Date and (b) the date
on which the Merger Agreement is terminated in accordance with its terms.
4. Miscellaneous.
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(a) Expenses. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
(b) Further Assurances. Each Stockholder, LBI and USAuto will execute
and deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
(c) Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement is not performed
in accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
(d) Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
such parties with respect to the subject matter hereof.
(e) Assignment. This Agreement shall not be assigned by operation of
law or otherwise.
(f) Parties in Interest. This Agreement shall be binding upon, inure
solely to the benefit of, and be enforceable by, the parties hereto and their
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
(g) Amendment. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(h) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
this Agreement is not affected in any manner materially adverse to any party.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in a mutually acceptable manner in order that the terms of
this Agreement remain as originally contemplated to the fullest extent possible.
(i) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (i) on the date of delivery if delivered
personally, or upon confirmation of receipt if delivered by telecopy or
facsimile (but only if a copy of such telecopy or facsimile is delivered to the
recipient by a recognized next-day courier service), (ii) on the first business
day following the date of dispatch if delivered by a recognized next-day courier
service or (iii) on the fifth business day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall
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be delivered as set forth below, or pursuant to such other instructions as have
been previously designated in writing to the party sending such notice by the
party to receive such notice:
if to LBI:
Liberte Investors Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Perl
if to USAuto:
USAuto Holdings, Inc.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
if to the Stockholders:
Xxxxxx'x Xxxx/Ford, Ltd. and Turtle Creek Revocable Trust
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxxx & Xxxxx, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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(j) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware applicable to contracts
executed in and to be performed in Delaware without regard to any principles of
choice of law or conflicts of law of such state.
(k) Submission to Jurisdiction; Waivers. Each of the parties to this
Agreement hereby irrevocably agrees that any legal action or proceeding with
respect to this Agreement or for recognition and enforcement of any judgment in
respect hereof brought by any other party hereto or its successors or assigns
may be brought and determined in the Chancery or other Courts of the State of
Delaware, and each of the parties to this Agreement hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect to its
property, generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. Each of the parties to this Agreement 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 lawfully serve
process, (ii) that it or its property is exempt or immune from 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 applicable law that (x) the suit, action or
proceeding in any such court is brought in an inconvenient forum, (y) the venue
of such suit, action or proceeding is improper and/or (z) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
(l) Definitions. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Merger Agreement.
(m) Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
* * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this Voting
Agreement to be duly executed and delivered as of the date first written above.
LIBERTE INVESTORS INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
USAUTO HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
XXXXXX'X XXXX/FORD, LTD.
By: Ford Diamond Corporation,
general partner
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
TURTLE CREEK REVOCABLE TRUST
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Trustee
EXHIBIT A
Common Stock held by Stockholders on a Fully Diluted Basis
Number of Shares Percentage of Shares
of Common Stock of Common Stock
Name Beneficially Owned Outstanding(1)
------------------------------------------------------------ -------------------- --------------------
Xxxxxx'x Xxxx/Ford, Ltd. 8,002,439 38.9%
Turtle Creek Revocable Trust 763,800 3.7%
----------
(1) Based on 20,589,430 shares of Common Stock of LBI outstanding at
September 22, 2003.
EXHIBIT B
None.
