EXHIBIT 1
---------
EXECUTION VERSION
SHARE FORWARD TRANSACTION
January 25, 2008
Xxxxxxx Enterprises, Inc.
c/o Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Dear Sir or Madam:
The purpose of this letter agreement (this "CONFIRMATION") is to confirm
the terms and conditions of the Transaction entered into between Ramius Capital
Group, L.L.C. and its affiliates ("PARTY A") and Xxxxxxx Enterprises, Inc., a
Colorado corporation ("PARTY B"), on the Trade Date specified below (the
"TRANSACTION"). This Confirmation constitutes a "Confirmation" as referred to in
the ISDA Master Agreement specified below.
The definitions and provisions contained in the 2002 ISDA Equity
Derivatives Definitions (the "EQUITY DEFINITIONS"), as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Equity
Definitions and this Confirmation, this Confirmation will govern. This
Transaction shall be deemed to be a "Share Forward Transaction" for purposes of
the Equity Definitions.
1. This Confirmation evidences a complete binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates and shall
supplement, form a part of, and be subject to an agreement in the form of the
ISDA Master Agreement (Multicurrency--Cross Border) as if we had executed an
agreement in such form (but without any Schedule except for the election of the
laws of the State of New York as the governing law, the election of Market
Quotation and Second Method and U.S. Dollars as the Termination Currency) on the
Trade Date. In the event of any inconsistency between the provisions of that
agreement and this Confirmation, this Confirmation will prevail for the purpose
of this Transaction.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: January 23, 2008
Seller: Party A
Buyer: Party B
Shares: Common Stock, par value $0.01 per share, of
AmeriCredit Corp. (Ticker: "ACF")
Number of Shares: 975,000
Forward Price: USD11.5864 per Share
Prepayment: Applicable
Prepayment Amount: USD5,648,370
Xxxxxxx Enterprises, Inc.
January 25, 2008
Prepayment Date: Three Business Days following the Trade Date
Exchange: NYSE
Related Exchange(s): All Exchanges
SETTLEMENT TERMS:
Physical Settlement: Applicable; provided that in lieu of the
provisions set forth in Section 9.2(a) of
the Equity Definitions, on the Settlement
Date, Buyer will pay to Seller an amount
equal to (x) the Forward Price multiplied by
the Number of Shares minus (y) the
Prepayment Amount, and Seller will deliver
to Buyer the Number of Shares to be
Delivered
Settlement Date: February 15, 2008 or earlier upon
termination of all applicable waiting
periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as
amended
Settlement Currency: USD
Settlement Method Election: Not Applicable
SHARE ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment
EXTRAORDINARY EVENTS:
Consequences of Merger
Events: Not Applicable
Tender Offer: Not Applicable
Composition of Combined
Consideration: Not Applicable
Nationalization, Insolvency
or Delisting: Not Applicable
ADDITIONAL REPRESENTATIONS, AGREEMENTS AND ACKNOWLEDGEMENTS:
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging
Activities: Applicable. For the avoidance of doubt, (x)
in no event shall Party A deliver, transfer,
assign or otherwise convey any Shares or
other Hedge Positions (if any) held by it,
or beneficial interest(s) in such Shares or
other Hedge Positions (if any), to Party B
hereunder prior to the Physical Settlement
of this Transaction on the Settlement Date,
(y) the parties agree that Party B will not
have any voting rights with respect to any
such Shares or other Hedge Positions (if
2
Xxxxxxx Enterprises, Inc.
January 25, 2008
any) held by Party A prior to the Physical
Settlement of this Transaction on the
Settlement Date, and (z) neither Party A nor
any affiliate of Party A shall be obligated
to purchase, sell, enter into or maintain
any Hedge Positions.
Additional Acknowledgments: Applicable
Eligible Contract
Participant: Each party represents to the other party
that it is an "eligible contract
participant" as defined in the U.S.
Commodity Exchange Act (as amended)
3. CALCULATION AGENT: Party A; provided that all calculations and
determinations made by the Calculation Agent
are subject to review and concurrence by the
other party. If Party A and Party B disagree
with respect to any calculation or
determination, Party A and Party B will each
appoint an independent Reference
Market-maker, and such two Reference
Market-makers will jointly appoint a third
Reference Market-maker. Such three Reference
Market-makers will jointly make such
calculation or determination (acting as
experts and not as arbitrators), whose
calculation or determination will be binding
and conclusive absent manifest error. In
addition, if at any time an Event of Default
has occurred and is continuing with respect
to Party A and an Event of Default has not
occurred and is not continuing with respect
to Party B, Party B will act as Calculation
Agent or will appoint a third party to act
as Calculation Agent, subject to the
foregoing proviso and provisions.
4. NOTICE AND ACCOUNT DETAILS:
Address for Notices
to Party A: Ramius Capital Group, L.L.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Account for payments
to Party A: To be provided
Address for Notices
to Party B: Xxxxxxx Enterprises, Inc.
c/o Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Tel.: 000-000-0000
Fax: 000-000-0000
Account for delivery
of Shares to Party B: To be provided
6. OFFICES:
(a) The Office of Party A for this Transaction is: Not Applicable;
and
(b) The Office of Party B for this Transaction is: Not Applicable.
7. TRANSFER. Neither party may transfer any of its rights or obligations
under this Transaction without the prior written consent of the non-transferring
party; provided that such consent will not be unreasonably withheld or delayed.
8. TAX DISCLOSURE. Party B and each of its employees, representatives, or
other agents may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of this Transaction and all materials
of any kind (including opinions or other tax analyses) that are provided to
Party B relating to such tax treatment and tax structure.
9. GOVERNING LAW AND WAIVER OF JURY TRIAL: This Confirmation will be governed
by and construed in accordance with the laws of the State of New York without
reference to the choice of law doctrine that would result in application of the
laws of another jurisdiction. Each party waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Transaction.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us at the
address provided above.
Yours sincerely,
RAMIUS CAPITAL GROUP, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
Confirmed as of the date first above written:
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
4
