EX-10.5
FORM OF VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated as of August 13, 2007, (this "AGREEMENT"),
by and among AG Delta Holdings, LLC, a Delaware limited liability company
("PURCHASER"), Pabrai Investment Fund 3, Ltd., a British Virgin Island
corporation ("PIF3"), Pabrai Investment Fund II, LP, an Illinois limited
partnership ("PIF2"), Pabrai Investment Fund IV, LP, a Delaware limited
partnership ("PIF4"), The Dakshana Foundation ("Dakshana"), Xxxxx Street, LLC, a
California limited liability company ("XXXXX STREET", and collectively with
XXX0, XXX0, XXX0 and Dakshana, the "PIF PARTIES"), and the stockholders of Delta
Financial Corporation, a Delaware corporation (the "COMPANY"), that are parties
hereto (each, a "SHAREHOLDER" and, collectively, the "SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, Purchaser and the Company are, concurrently with the
execution and delivery of this Agreement, entering into a Warrant Acquisition
Agreement, dated as of the date hereof (including the exhibits thereto, the
"WARRANT AGREEMENT"; capitalized terms used but not defined herein shall have
the meanings given to such terms in the Warrant Agreement) pursuant to which
Purchaser will acquire the Warrants to purchase up to 10,000,000 shares of the
Company's common stock, par value $.01 per share (the "COMMON STOCK");
WHEREAS, pursuant to a purchase agreement (the "NOTE PURCHASE
AGREEMENT"), the PIF Parties are purchasing a series of the Company's
convertible notes (the "NOTES"), which may be converted into up to 2,000,000
shares of the Company's Common Stock;
WHEREAS, as of the date hereof, each Shareholder is the record
and beneficial owner of the number of shares of the Common Stock set forth on
the signature page hereof beneath such Shareholder's name (with respect to each
Shareholder, such Shareholder's "EXISTING SHARES" and, together with any shares
of Common Stock or other securities or voting capital stock of Company acquired
by such Shareholder after the date hereof, the "SHARES"); and
WHEREAS, as a condition to its willingness to enter into the
Warrant Agreement, Purchaser has requested that the Shareholders enter into this
Agreement.
WHEREAS, as a condition to purchasing the Notes, the investors
therein have requested that the Shareholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements contained herein,
and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING
1.1 AGREEMENT TO VOTE. Each Shareholder agrees that, from and
after the date hereof and until this Agreement is terminated pursuant to Section
4.1, at any meeting of the stockholders of the Company, however called, or in
connection with any written consent of the stockholders of the Company, relating
to any proposed action by the stockholders of the Company with respect to the
matters set forth in Section 1.1(b) below (such meeting or written consent, the
"STOCKHOLDERS' MEETING"), such Shareholder shall:
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(a) appear at each such meeting or otherwise cause all Shares
that are beneficially owned or held of record by such Shareholder to be counted
as present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), in person or by proxy, all
Shares, and any other voting securities of the Company (whenever acquired), that
are owned beneficially or of record by such Shareholder or as to which he has,
directly or indirectly, the right to vote or direct the voting, (i) in favor of
the approval of the issuance by the Company of the Warrant Shares pursuant to
the terms of the Warrant Agreement and any other action of the Company's
stockholders requested in furtherance thereof, (ii) in favor of the issuance of
the shares of Common Stock issuable upon conversion of the Notes and any other
action of the company's stockholders requested in furtherance thereof, (iii) any
"change of control" of the Company that may be deemed to have occurred as a
result of the issuances contemplated by the transactions referred to in clauses
(i) and (ii), (iv) against any action or agreement submitted for adoption of the
stockholders of the Company that would reasonably be expected to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Warrant Agreement or the Purchase
Agreement or of such Shareholder contained in this Agreement; and (v) against
any action, agreement or transaction submitted for adoption to the stockholders
of the Company that such Shareholder would reasonably expect is intended, or
would reasonably be expected, to materially impede, interfere or be inconsistent
with, delay or materially and adversely affect this Agreement or the
consummation of the transaction contemplated by the Warrant Agreement, the
Purchase Agreement or the Financing Agreements (as defined in the Warrant
Agreement).
1.2 PROXY. As security for such Shareholder's obligations
under Section 1.1, each Shareholder hereby irrevocably constitutes, appoints and
grants to Purchaser (and any person designated in writing by Purchaser) as his
attorney in fact and proxy, with full power of substitution and resubstitution,
to cause the Shares owned beneficially and of record by such Shareholder as
indicated in Section 1.1 above to be counted as present at any meeting of
Shareholders and to vote such Shares thereat (which proxy shall be limited to
the matters set forth in Section 1.1 relating to the Warrant Agreement and the
Financing Agreements). EACH PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND
COUPLED WITH AN INTEREST. Each Shareholder agrees to take such further action or
execute such other instruments as may be necessary to effectuate the intent of
this proxy. Each such proxy will expire automatically and without further action
by the parties upon termination of this Agreement.
1.3 NO INCONSISTENT AGREEMENTS. Each Shareholder hereby
covenants and agrees that, except as contemplated by this Agreement, such
Shareholder (a) has not entered, and shall not enter at any time while this
Agreement remains in effect, into any voting agreement or voting trust with
respect to such Shareholder's Shares and (b) has not granted, and shall not
grant at any time while this Agreement remains in effect, a proxy or power of
attorney with respect to such Shareholder's Shares, in either case which is
inconsistent with such Shareholder's obligations hereunder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder hereby, severally and not jointly, represents and warrants to
Purchaser as follows:
(a) AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY ACTION.
Such Shareholder has full power and authority to execute and deliver this
Agreement, to perform such Shareholder's obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Shareholder and constitutes a valid and binding obligation of
such Shareholder, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and to general equity principles).
(b) OWNERSHIP. Such Shareholder's Existing Shares are, and all
of his Shares from the date hereof through the termination of this Agreement
will be, owned beneficially and of record by such Shareholder (subject to any
dispositions of Shares permitted by Section 3.1 hereof). As of the date hereof,
such Shareholder's Existing Shares are the only shares of Common Stock held of
record, beneficially owned by or for which voting power or disposition power is
held or shared by such Shareholder. Subject to Section 3.1, such Shareholder
has, and will have at all times while this Agreement remains in effect, sole
voting power, sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Article I or Section 3.1 hereof, and sole
power to agree to all of the matters set forth in this Agreement, in each case
with respect to all of such Shareholder's Existing Shares and with respect to
all of such Shareholder's Shares at the time of the Stockholders' Meeting, with
no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. Such
Shareholder has good title to such Shareholder's Existing Shares, free and clear
of any liens or encumbrances, and such Shareholder will have good title to such
Existing Shares and any additional Shares acquired by such Shareholder after the
date hereof and prior to the Stockholder's Meeting, free and clear of any liens.
(c) NO VIOLATION. The execution and delivery of this Agreement
by such Shareholder does not, and the performance by such Shareholder of his
obligations under this Agreement will not, (i) to such Shareholder's knowledge,
conflict with or violate any law, ordinance or regulation applicable to such
Shareholder or by which any of his assets or properties is bound or (ii)
conflict with, result in any breach of or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
require payment under, or result in the creation of any lien on the properties
or assets of such Shareholder pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which such Shareholder is a party or by which such Shareholder or
any of his assets or properties is bound, except for any of the foregoing as
would not reasonably be expected, either individually or in the aggregate, to
materially impair the ability of such Shareholder to perform his obligations
hereunder or to consummate the transactions contemplated hereby on a timely
basis.
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ARTICLE III
OTHER COVENANTS
3.1 FURTHER AGREEMENTS OF THE SHAREHOLDERS. (a) Each
Shareholder, severally and not jointly, hereby agrees, while this Agreement is
in effect, and except as expressly contemplated hereby, not to sell, transfer,
pledge, encumber, assign, distribute, gift or otherwise dispose of
(collectively, a "TRANSFER"), or enforce or permit the execution of the
provisions of any redemption, share purchase or sale, recapitalization or other
agreement with the Company, or enter into any contract, option or other
arrangement or understanding with respect to any Transfer (whether by actual
disposition or effective economic disposition due to hedging, cash settlement or
otherwise) of, any of such Shareholder's Existing Shares, any additional Shares
acquired beneficially or of record by such Shareholder after the date hereof, or
any interest therein, except in each case to a person or entity who agrees in
writing, pursuant to an agreement delivered to and in form and substance
acceptable to Purchaser, to be bound by this Agreement as a Shareholder and be
subject to the terms hereof.
(b) In case of a stock dividend or distribution, or any change
in Common Stock by reason of any stock dividend or distribution, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any securities into which or for which any or
all of the Shares may be changed or exchanged or which are received in such
transaction.
(c) Each Shareholder agrees, severally and not jointly, while
this Agreement is in effect, not to (i) take, agree or commit to take any action
that would make any representation and warranty of such Shareholder, as
applicable, contained in this Agreement inaccurate in any respect as of any time
during the term of this Agreement or (ii) agree or commit to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time. Each Shareholder, severally and not jointly,
further agrees to fully cooperate with Purchaser and the PIF Parties, as and to
the extent reasonably requested by Purchaser or any of the PIF Parties, to
effect the transactions contemplated hereby.
ARTICLE IV
MISCELLANEOUS
4.1 TERMINATION. This Agreement shall terminate upon both (i)
the earlier to occur of (a) the vote in favor of the approval of the issuance by
the Company of the Warrant Shares pursuant to the terms of the Warrant Agreement
and (b) the termination of the Warrant Agreement pursuant to its terms and (ii)
the earlier to occur of (a) the obtaining of the requisite stockholder approval
in accordance with Section 203 of the Delaware General Corporation Law and
applicable Nasdaq Global Market corporate governance rules of the issuance of
Common Stock upon conversion of the Notes and (b) payment in full of all amounts
due and owing with respect to the Notes. In the event of such termination, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of any party.
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4.2 FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate the transactions contemplated by
this Agreement.
4.3 NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Purchaser any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the applicable Shareholder, and Purchaser shall have no authority to
manage, direct, superintend, restrict, regulate, govern or administer any of the
policies or operations of the Company or exercise any power or authority to
direct the Shareholders in the voting of any of the Shares, except as otherwise
provided herein.
4.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed given if
delivered personally, faxed (with confirmation) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Purchaser to:
AG Delta Holdings, LLC
c/o Xxxxxx, Xxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with an additional copy (which shall not constitute notice)
to:
Xxxxxxxx & Xxxxx, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: 212-446-4900
(b) if to any of the PIF Parties:
Xxxxxxx Xxxxxx
Managing Partner
Pabrai Investment Funds
000 Xxxxxxxx, #000
Xxxxxx, XX 00000-0000
Fax:
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with an additional copy (which shall not constitute notice)
to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
7800 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Facsimile: 312-876-7934
(c) if to a Shareholder, as provided on the signature pages
hereof.
4.5 INTERPRETATION. When a reference is made in this Agreement
to an Article or a Section, such reference shall be to an Article or a Section
of this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. The word "or" when used in this Agreement is not exclusive. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
4.6 COUNTERPARTS. This Agreement may be executed in one or
more counterparts (including by facsimile) and shall become effective when one
or more counterparts have been signed by each of the parties and delivered to
the other parties, it being understood that both parties need not sign the same
counterpart.
4.7 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement (together with the Warrant Agreement, to the extent referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement is not intended to and shall not confer
upon any person other than the parties any legal or equitable rights or
remedies.
4.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
4.9 SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION. The parties
agree that irreparable damage would occur and that the parties would not have
any adequate remedy at law in the event that any of the provisions of this
Agreement were not performed in accordance with
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their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the State of New York or any federal court
sitting in the Southern District of New York, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (a) irrevocably and unconditionally consents to submit
itself to the exclusive jurisdiction and venue of the Supreme Court of the State
of New York (or, in the case of any claim as to which the federal courts have
exclusive subject matter jurisdiction, the Federal Court of the United States of
America sitting in the Southern District of New York) in the event any dispute
arises out of this Agreement or the transactions contemplated by this Agreement,
(b) agrees that all claims in respect of such action or proceeding must be
commenced, and may be heard and determined, exclusively in the aforementioned
courts (c) waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue of any
such action or proceeding in the aforementioned courts; and (d) waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in the aforementioned courts. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 4.4.
4.10 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
4.11 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. 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 to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
4.12 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior written
consent of the other parties, and any assignment without such consent shall be
null and void. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
AG DELTA HOLDINGS, LLC
By:
-------------------------------------
Name:
Title:
PABRAI INVESTMENT FUND 3, LTD.
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
PABRAI INVESTMENT FUND II, L.P.
By: Xxxxx Street LLC, its general
partner
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
PABRAI INVESTMENT FUND IV, L.P.
By: Xxxxx Street LLC, its general
partner
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
XXXXX STREET, LLC
By:
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO VOTING AND SUPPORT AGREEMENT]
THE DAKSHANA FOUNDATION
By:
-------------------------------------
Name:
Title:
[SHAREHOLDER]
----------------------------------------
Number of Existing Shares: _____
Notices:
Address:
Attention:
Facsimile:
[SIGNATURE PAGE TO VOTING AND SUPPORT AGREEMENT]
