EXHIBIT 10.12
BACKSTOP AGREEMENT
THIS BACKSTOP AGREEMENT (the "AGREEMENT") is made as of December 15,
2003 by and between Liberte Investors Inc., a Delaware corporation (the
"COMPANY") and Xxxxxx'x Xxxx/Ford, Ltd., a Texas limited partnership ("XXXXXX'X
XXXX"). Except as otherwise indicated herein, capitalized terms used herein are
defined in SECTION 8 hereof.
WHEREAS, the Company is currently conducting a rights offering (the
"RIGHTS OFFERING") to allow its stockholders (as of a certain record date) the
right to purchase an additional 0.61 shares of its common stock, par value $0.01
per share (the "COMMON STOCK"), per share that each stockholder of the Company
owns as of the record date established for the Rights Offering (each a "RIGHT,"
and collectively, the "RIGHTS"), at a price of $4.00 per share (the
"SUBSCRIPTION PRICE"); and
WHEREAS, Xxxxxx'x Xxxx has agreed to participate in the Rights
Offering by exercising its pro rata share of the Rights and, in connection with
the Rights Offering, has committed to subscribe for and exercise any Rights that
remain unsold in the Rights Offering (the "BACKSTOP AMOUNT") at the Subscription
Price (it being understood that other stockholders will not be offered the right
to purchase any Rights that go unsubscribed in the Rights Offering).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
Section 1. PARTICIPATION IN THE RIGHTS OFFERING; BACKSTOP.>>
(a) PARTICIPATION IN THE RIGHTS OFFERING. Pursuant to the terms and
subject to the conditions of this Agreement, Xxxxxx'x Xxxx hereby agrees to
exercise prior to the expiration of the Rights Offering its pro rata share of
the Rights, based on the total number of Rights to which Xxxxxx'x Xxxx is
entitled in the Rights Offering and the total number of Rights being offered in
the Rights Offering (its "PRO RATA SHARE") in accordance with the procedures set
forth in the Company's Registration Statement on Form S-1 initially filed with
the Commission on December __, 2003 (as amended, the "REGISTRATION STATEMENT")
under the heading "The Rights Offering---Method of Exercising Rights," and to
pay the aggregate Subscription Price for its Pro Rata Share of the Rights
granted to it in the Rights Offering.
(b) BACKSTOP. Pursuant to the terms and subject to the conditions of
this Agreement, the Company hereby offers Xxxxxx'x Xxxx the right to subscribe
for and exercise, in connection with the Rights Offering, at the Subscription
Price the Backstop Amount. As soon as reasonably practicable following the
expiration date of the Rights Offering as set forth in the Registration
Statement (the "EXPIRATION DATE"), the Company and the subscription agent for
the Rights Offering shall determine the Backstop Amount and provide notice
thereof to Xxxxxx'x Xxxx. At the Closing, Xxxxxx'x Xxxx hereby agrees to
subscribe for and exercise, at the Subscription Price, the Backstop Amount (it
being understood that other stockholders will not be offered the right to
purchase any Rights that go unsubscribed in the Rights Offering).
Section 2. THE CLOSING. Hunter's Glen's subscription for the
Backstop Amount hereunder shall take place as soon as reasonably practicable
following the Expiration Date at a place mutually agreeable to the Company and
Xxxxxx'x Xxxx (the "CLOSING"). At the Closing, the Company shall deliver to
Xxxxxx'x Xxxx the certificates evidencing the shares of Common Stock subscribed
for pursuant to SECTION 1, and Xxxxxx'x Xxxx shall deliver to the Company a
cashier's check or wire transfer of immediately available funds to a bank
account designated by the Company in the amount equal to the Subscription Price
multiplied by the number of Rights included in the Backstop Amount.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a
material inducement to Xxxxxx'x Xxxx to enter into this Agreement and subscribe
for the Rights, the Company hereby represents and warrants that:
(a) ORGANIZATION AND CORPORATE POWER. The Company is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which its ownership of
property or conduct of business requires it to qualify. The Company has all
requisite corporate power and authority and all material licenses, permits and
authorizations necessary to own and operate its properties, to carry on its
business as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement (including without
limitation, the Rights Offering).
(b) CAPITAL STOCK. As of the Closing and immediately thereafter, the
authorized capital stock of the Company shall consist of (a) 10,000,000 shares
of preferred stock, none of which shares shall be issued and outstanding and (b)
75,000,000 shares of Common Stock, of which approximately 46,339,430 shares
shall be issued and outstanding (subject to adjustment following the exercise of
any stock options granted under the LBI Stock Option Plan, of which 2,833,678
options are outstanding as of the date hereof). As of the Closing, all of the
issued and outstanding shares of capital stock of the Company have been duly and
validly authorized and issued, were issued in compliance with federal and state
securities laws, are fully paid and non-assessable and are listed on the New
York Stock Exchange.
(c) AUTHORIZATION; NO BREACH. The execution, delivery and
performance of this Agreement and any other agreement contemplated hereby to
which the Company is a party have been duly authorized by the Company. The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the
Company is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets; and except for
the registration of the Rights under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
applicable state securities laws in connection with the Rights Offering, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby.
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(d) BROKER'S FEES. There is no investment banker, broker, finder or
other intermediary or advisor that has been retained by or is authorized to act
on behalf of the Company or any of its Affiliates who might be entitled to any
fee, commission or reimbursement of expenses from Xxxxxx'x Xxxx as a result of
consummation of the transactions contemplated hereby (including, without
limitation, the Rights Offering).
Section 4. REPRESENTATIONS AND WARRANTIES OF XXXXXX'X XXXX. As a
material inducement to the Company to enter into this Agreement, Xxxxxx'x Xxxx
hereby represents and warrants that:
(a) ORGANIZATION AND CORPORATE POWER. Xxxxxx'x Xxxx is a limited
partnership duly organized, validly existing and in good standing under the laws
of Texas and is qualified to do business in every jurisdiction in which its
ownership of property or conduct of business requires it to qualify. Xxxxxx'x
Xxxx has all requisite corporate power and authority and all material licenses,
permits and authorizations necessary to own and operate its properties, to carry
on its business as now conducted and presently proposed to be conducted and to
carry out the transactions contemplated by this Agreement (including without
limitation, subscription for the Rights in the Rights Offering).
(b) AUTHORIZATION; NO BREACH. The execution of this Agreement by
Xxxxxx'x Xxxx and the consummation by Xxxxxx'x Xxxx of the transactions
contemplated hereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which Xxxxxx'x Xxxx is a party or by which Xxxxxx'x Xxxx is bound or to which
any of its property or assets is subject, nor will such actions result in any
violation of the provisions of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over Xxxxxx'x Xxxx
or its property or assets in each case in a manner that would adversely impact
Hunter's Glen's ability to subscribe for the Rights hereunder; and, except for
the registration of the Rights under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in connection with
the Rights Offering, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by Xxxxxx'x Xxxx
and the consummation by Xxxxxx'x Xxxx of the transactions contemplated hereby in
each case in a manner that would adversely impact Hunter's Glen's ability to
subscribe for the Rights and perform its obligations hereunder.
(c) INVESTMENT REPRESENTATIONS. Xxxxxx'x Xxxx hereby represents that
it is acquiring the Rights purchased hereunder or acquired pursuant hereto for
its own account with the present intention of holding such securities for
purposes of investment, and that it has no intention of selling such securities
in a public distribution in violation of the federal securities laws or any
applicable state securities laws. In addition, Xxxxxx'x Xxxx hereby represents
that it is sophisticated in financial matters and is able to evaluate the risks
and benefits of the investment in the Rights.
(d) BROKER'S FEES. There is no investment banker, broker, finder or
other intermediary or advisor that has been retained by or is authorized to act
on behalf of Xxxxxx'x Xxxx who might be entitled to any fee, commission or
reimbursement of expenses from either the
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Company or any of its Affiliates as a result of consummation of the transactions
contemplated hereby, (including, without limitation, the Rights Offering).
(e) SHARES OF COMMON STOCK BENEFICIALLY OWNED. As of the date
hereof, Xxxxxx'x Xxxx is the beneficial owner of 8,002,439 shares of Common
Stock.
Section 5. CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE
CLOSING. The respective obligations of each party to consummate the transactions
contemplated hereby are subject to the satisfaction on or prior to the Closing
Date of each of the following conditions:
(a) All consents by third parties (government or otherwise) that are
required for the consummation of the transactions contemplated hereby
(including, without limitation, the consummation of the Rights Offering) have
been obtained on terms mutually agreeable to each party.
(b) The Registration Statement shall have been timely filed with the
Commission and declared effective; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or otherwise shall have been complied
with.
(c) No action, suit or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any jurisdiction
or before any arbitrator wherein an unfavorable judgment, decree, injunction,
order or ruling would prevent the performance of this agreement or any of the
transactions contemplated hereby (including, without limitation, the Rights
Offering), declare unlawful the transactions contemplated by this Agreement
(including, without limitation, the Rights Offering) or cause such transactions
to be rescinded.
(d) The Rights Offer shall have been consummated in conformity with
the requirements and conditions set forth in the Registration Statement.
(e) The shares of Common Stock underlying the Rights shall have been
authorized for listing on the New York Stock Exchange.
Section 6. CONDITIONS TO OBLIGATIONS OF THE COMPANY TO EFFECT THE
CLOSING. Subject to SECTION 5 above, the obligations of the Company to
consummate the transactions contemplated hereby are subject to each of the
representations and warranties of Xxxxxx'x Xxxx contained in this Agreement
being true and correct in all material respects as of the date hereof and at and
as of the Closing Date as if made at and as of such time, except that, to the
extent such representations and warranties address matters only as of a
particular date, such representations and warranties shall, to such extent, be
true and correct at and as of such particular date as if made at and as of such
particular date.
Section 7. CONDITIONS TO OBLIGATIONS OF XXXXXX'X XXXX TO EFFECT THE
CLOSING. Subject to SECTION 5 above, the obligations of Xxxxxx'x Xxxx to
consummate the transactions contemplated hereby and to purchase the Backstop
Amount are subject to each of the representations and warranties of the Company
contained in this Agreement being true and
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correct in all material respects as of the date hereof and at and as of the
Closing Date as if made at and as of such time, except that, to the extent such
representations and warranties address matters only as of a particular date,
such representations and warranties shall, to such extent, be true and correct
at and as of such particular date as if made at and as of such particular date.
Section 8. DEFINITIONS. For the purposes of this Agreement, the
following terms have the meanings set forth below:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For purposes of this definition, "control" when
used with respect to any specified Person means the power to direct or cause the
direction of the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by Contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"COMMISSION" means the Securities and Exchange Commission or any
governmental body or agency succeeding to the functions thereof.
"LBI STOCK OPTION PLAN" means the Liberte Investors Inc. 2002 Long
Term Incentive Plan.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, association, a joint stock company, a trust, a joint venture,
an unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
Section 9. TERMINATION. This Agreement may be terminated at any time
prior to the Closing, by either party as follows:
(a) by mutual written consent of the Company and Xxxxxx'x Xxxx;
(b) by either the Company or Xxxxxx'x Xxxx if any governmental
entity shall institute any suit or action challenging the validity or legality
of, or seeking to restrain the consummation of, the transactions contemplated by
this Agreement (including, without limitation, the issuance of Rights pursuant
to the Rights Offering);
(c) by the Company, in the event Xxxxxx'x Xxxx has breached any
representation, warranty, or covenant contained in this Agreement, in any
material respect, provided that the Company has notified Xxxxxx'x Xxxx of the
breach, and the breach has continued without cure for a period of 15 days after
the notice of such breach or for such longer period so long as such breach is
curable by Xxxxxx'x Xxxx through the exercise of its reasonable efforts, and
Xxxxxx'x Xxxx continues to exercise such reasonable efforts;
(d) by Xxxxxx'x Xxxx, in the event that the Company has breached any
representation, warranty, or covenant contained in this Agreement, in any
material respect,
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provided that Xxxxxx'x Xxxx has notified the Company of the breach, and the
breach has continued without cure for a period of 15 days after the notice of
such breach or for such longer period so long as such breach is curable by the
Company through the exercise of its reasonable efforts, and the Company
continues to exercise such reasonable efforts; and
(e) by either the Company or Xxxxxx'x Xxxx if the Agreement and Plan
of Merger, dated as of the date hereof, by and among the Company, USAH Merger
Sub, Inc., a Delaware corporation and direct wholly-owned subsidiary of the
Company, USAuto Holdings, Inc., a Delaware corporation ("USAUTO"), and the
stockholders of USAuto is terminated pursuant to Section 10.1 thereof.
Section 10. INDEMNIFICATION. The Company shall indemnify Xxxxxx'x
Xxxx and hold it harmless, from and against and pay on behalf of or reimburse
Xxxxxx'x Xxxx in respect of any claims, losses or expenses which Xxxxxx'x Xxxx
may suffer, sustain, or become subject to, as a result of or relating to or
arising out of any breach of any representation, warranty, covenant or agreement
made by the Company contained in this Agreement. The provisions of this SECTION
10 shall be in addition to, rather than in lieu of, and shall not affect any
rights or remedies Xxxxxx'x Xxxx may have pursuant to law, contract or
otherwise.
Section 11. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided that neither this Agreement nor any of the
rights, interests, or obligations hereunder may be assigned by any party without
the prior written consent of the other party, except that, Xxxxxx'x Xxxx may
assign, in whole or in part, its rights and obligations pursuant to this
Agreement to one or more of its Affiliates, provided that Xxxxxx'x Xxxx (i) will
nonetheless remain liable for all of its obligations hereunder and (ii) shall
give timely notice of any such assignment to the Company.
(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(c) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(d) CONSTRUCTION. Whenever the context requires, each term stated in
either the singular or the plural shall include the singular and the plural, and
pronouns stated in either the masculine, the feminine or the neuter gender shall
include the masculine, feminine and neuter. All references to Sections and
Paragraphs refer to sections and paragraphs of this
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Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than limitation.
(e) AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended and waived only with the prior written consent of each of the parties
hereto.
(f) COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may be
executed simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement. This Agreement may be
executed by facsimile signature.
(g) GOVERNING LAW. This Agreement will be governed in all respects
by the laws of the State of Delaware, without regard to the principles of
conflicts of law of such state.
(h) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Backstop
Agreement on the date first written above.
LIBERTE INVESTORS INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Its: President and Chief Executive Officer
XXXXXX'X XXXX/FORD, LTD.
By: Ford Diamond Corporation,
general partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Its: President
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Its: General Partner
