|
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"),
Dalal Street, LLC, a
California limited liability company ("DALAL STREET", and
collectively with
PIF3, PIF2, PIF4 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:
- 1 -
<PAGE>
(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.
- 2 -
<PAGE>
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
| 
