Exhibit 10.20
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT"), dated as of December __, 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 [__], 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 Stock as partial consideration under the Merger
Agreement (as amended from time to
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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
0
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
(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:
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
USAUTO HOLDINGS, INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
XXXXXX'X XXXX/FORD, LTD.
By: Ford Diamond Corporation,
general partner
By:
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
By:
------------------------------------------
Name: Xxxxxx X. Xxxx
Title: General Partner
TURTLE CREEK REVOCABLE TRUST
By:
-----------------------------------
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%
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(1) Based on 20,589,430 shares of Common Stock of LBI outstanding at
September 22, 2003.
EXHIBIT B
None.
