EXHIBIT 2
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EXECUTION VERSION
VOTING AND PROXY AGREEMENT
THIS VOTING AND PROXY AGREEMENT (this "AGREEMENT") is made and entered
into as of January 28, 2008 by and between Ramius Capital Group, LLC and its
affiliated entities (collectively, "RAMIUS") and ▇▇▇▇▇▇▇ Enterprises, Inc.
("▇▇▇▇▇▇▇").
WHEREAS, on January 22, 2008, Ramius and ▇▇▇▇▇▇▇ filed a Schedule 13D with
respect to the common stock of AmeriCredit Corp. (the "Company"), reporting
beneficial ownership of an aggregate of 22,159,300 shares of common stock of the
Company, 20,159,300 shares of which are owned by ▇▇▇▇▇▇▇ and its affiliates and
2,000,000 shares of which are owned by affiliates of Ramius;
WHEREAS, on January 23, 2008, following the close of the market, Ramius
and ▇▇▇▇▇▇▇ entered into a share forward transaction pursuant to which ▇▇▇▇▇▇▇
agreed to purchase from Ramius an aggregate of 975,000 shares of common stock of
the Company on February 15, 2008, or earlier upon termination of all applicable
waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended (the "SHARE FORWARD TRANSACTION");
WHEREAS, as of the date hereof, after giving effect to the Share Forward
Transaction, Ramius is the owner of 1,025,000 shares of common stock of the
Company (the "SHARES");
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Agreement to Vote; Restrictions on Voting; Irrevocable
Proxy.
(a) Agreement to Vote. Ramius hereby agrees to vote the
Shares or execute a written consent in respect thereof, on all matters as
directed by ▇▇▇▇▇▇▇ at any meeting or meetings of the stockholders of the
Company.
(b) Irrevocable Proxy. Ramius hereby irrevocably appoints
▇▇▇▇▇▇▇ or its designee as Ramius' agent, attorney and proxy, to vote (or cause
to be voted) the Shares owned by Ramius as directed by ▇▇▇▇▇▇▇. This proxy is
irrevocable and coupled with an interest. The vote of ▇▇▇▇▇▇▇ as the proxy
holder shall control in any conflict between the vote by ▇▇▇▇▇▇▇ as the proxy
holder of the Shares and a vote by Ramius of the Shares.
(c) Inconsistent Agreements. Ramius hereby agrees that, it
shall not enter into any agreement, contract or understanding with any person,
directly or indirectly, to vote, grant a proxy or power of attorney or give
instructions with respect to the voting of the Shares in any manner which is
inconsistent with this Agreement.
Section 2. Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions (including without limitation, in the case of the Ramius, any
amendments to this Agreement which ▇▇▇▇▇▇▇ may reasonably request) as may be
necessary or appropriate to effectuate, carry out and comply with all of his or
its obligations under this Agreement.
Section 3. Miscellaneous.
(a) Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (i) when delivered
personally, (ii) on the third business day after being mailed by certified mail,
return receipt requested, (iii) the next business day after delivery to a
recognized overnight courier, or (iv) upon transmission and confirmation of
receipt by a facsimile operator if sent by facsimile (and shall also be
transmitted by facsimile to the persons receiving copies thereof), to the
parties at the following addresses or facsimile numbers (or to such other
address and facsimile number as a party may have specified by notice given to
the other party pursuant to this provision):
If to ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇▇ Enterprises, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to (which shall not constitute notice):
Weil, Gotshal & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to Ramius, to:
Ramius Capital Group, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
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with a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(b) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified except by an
instrument in writing signed by ▇▇▇▇▇▇▇ and Ramius. This Agreement (including,
without limitation, the irrevocable proxy granted herein) shall terminate with
respect to any particular Share upon the earlier of (i) the sale, transfer or
disposition of such Share by Ramius to a non-affiliate of Ramius and (ii)
January 28, 2009.
(c) Successors and Assigns; Transfer of Shares to
Affiliates. No party may assign any of its or his rights or delegate any of its
or his obligations under this Agreement without the prior written consent of the
other party, except that each of Ramius and ▇▇▇▇▇▇▇ may, without the consent of
the other party, assign any of its rights and delegate any of its obligations
under this Agreement to any affiliate of Ramius or ▇▇▇▇▇▇▇, as applicable.
Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation any corporate
successor by merger or otherwise. In the event of any transfer of Shares to an
affiliate, the transferor shall remain liable for the performance of all
obligations of transferor under this Agreement and as a condition to such
transfer such affiliate shall execute an agreement that is identical to this
Agreement (except to reflect the transfer to such affiliate).
(d) No Third Party Beneficiaries. Nothing expressed or
referred to in this Agreement will be construed to give any person, other than
the parties to this Agreement, any legal or equitable right, remedy or claim
under or with respect to this Agreement or any provision of this Agreement as
such rights as may inure to a successor or permitted assignee under Section
10(d).
(e) No Partnership, Agency, or Joint Venture. This Agreement
is intended to create, and creates, a contractual relationship and is not
intended to create, and does not create, any agency, partnership, joint venture
or any like relationship between the parties hereto.
(f) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
(g) Specific Performance; Remedies Cumulative. The parties
hereto acknowledge that money damages are not an adequate remedy for violations
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of this Agreement and that any party, in addition to any other rights and
remedies which the parties may have hereunder or at law or in equity, may, in
his or its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunction or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief. 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 rights, powers or remedies by such party.
(h) No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with his or its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of his or its right to exercise any such or other right, power or
remedy or to demand such compliance.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without giving
effect to the principles of conflict of laws thereof.
(j) Jurisdiction. The parties hereto hereby irrevocably
submit to the exclusive jurisdiction of any federal or state court located
within the borough of Manhattan of the City, County and State of New York over
any dispute arising out of or relating to this Agreement and each party hereby
irrevocably agrees that all claims in respect of such dispute or any suit,
action proceeding related thereto may be heard and determined in such courts.
(k) Counterparts. This Agreement may be executed by
facsimile and in any number of counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies each signed by less than all, but
together signed by all, the parties hereto.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date and year first written above.
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Orlando
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Name: ▇▇▇▇▇▇ ▇. Orlando
Title: Authorized Signatory
RAMIUS CAPITAL GROUP, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
