EXHIBIT 1
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Jefferies [Logo]
SHARE FORWARD TRANSACTION
January 11, 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
Xxxxxxxxx & Company, Inc. ("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 10, 2008
Seller: Party A
Buyer: Party B
Shares: Common Stock, par value $0.01
per share, of AmeriCredit Corp.
(Ticker: "ACF")
Number of Shares: 11,316,200
Forward Price: USD 12.90 per Share
Prepayment: Applicable
Xxxxxxx Enterprises, Inc.
January 11, 2008
Prepayment Amount: USD 72,989,490
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 25, 2008
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 any) held by
Party A prior to the Physical
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Xxxxxxx Enterprises, Inc.
January 11, 2008
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: Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Tel: 000 000-0000
Fax: 000 000-0000
Account for payments to Party A: Bank of New York
ABA# 000000000
A/C Xxxxxxxxx & Company Inc.
A/C 890-000-7001
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
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Xxxxxxx Enterprises, Inc.
January 11, 2008
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
000-000-0000.
Yours sincerely,
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Head of Equity Department
Confirmed as of the date first above written:
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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