EXHIBIT 99.2
VOTING AND EXCHANGE AGREEMENT
VOTING AND EXCHANGE AGREEMENT, dated as of December 22, 1999 (this
"Agreement"), by and between WM Acquisition, Inc., a New Jersey corporation (the
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"Merger Sub"), and Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇, a stockholder (the "Stockholder") of
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Wilmar Industries, Inc., a New Jersey corporation (the "Company").
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WHEREAS, the Company and Merger Sub propose to enter into an Agreement
and Plan of Merger and Recapitalization, dated as of the date hereof (the
"Merger Agreement"), which provides for, among other things, the merger of
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Merger Sub with and into the Company (the "Merger");
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WHEREAS, as of the date hereof, the Stockholder is a holder of record
or Beneficially Owns (as defined herein) shares of common stock, no par value
per share, of the Company ("Company Common Stock"); and
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WHEREAS, as a condition to the willingness of Merger Sub to enter into
the Merger Agreement, Merger Sub has required that the Stockholder agree, and in
order to induce Merger Sub to enter into the Merger Agreement, the Stockholder
has agreed to enter into this Agreement with respect to all of the shares of
Company Common Stock and shares of Class C Preferred Stock, par value $.10 per
share, of the Company now held of record or Beneficially Owned and which may
hereafter be acquired by such Stockholder (collectively, the "Shares").
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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 General. Capitalized terms used and not defined herein
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have the respective meanings ascribed to them in the Merger Agreement.
Section 1.2 Beneficial Ownership. For purposes of this Agreement,
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"Beneficially Own" or "Beneficial Ownership" with respect to any securities
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shall mean
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"beneficial ownership" of such securities (as determined pursuant to Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
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including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
ARTICLE II
VOTING
Section 2.1 Voting Agreement. The Stockholder hereby agrees as
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follows:
(a) to appear, or cause the holder of record on any applicable
record date with respect to any Shares Beneficially Owned by such
Stockholder (the "Record Holder") to appear, in person or by proxy, for the
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purpose of obtaining a quorum at any annual or special meeting of
stockholders of the Company and at any adjournment thereof at which matters
relating to the Merger, the Merger Agreement or any transaction
contemplated thereby are considered; and
(b) at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company, to
vote, or cause to be voted by the Record Holder, in person or by proxy, the
Shares held of record or Beneficially Owned by the Stockholder: (i) in
favor of the Merger, the Merger Agreement (as amended from time to time)
and the transactions contemplated by the Merger Agreement and (ii) against
any proposal for any extraordinary corporate transaction, such as a
recapitalization, dissolution, liquidation, or sale of assets of the
Company or any merger, consolidation or other business combination (other
than the Merger) between the Company and any Person (other than Merger Sub)
or any other action or agreement in each case that is intended or which
reasonably could be expected to (x) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement, (y) result in any of the conditions to
the Company's obligations under the Merger Agreement not being fulfilled or
(z) impede, interfere with, delay, postpone or adversely affect the Merger
and the transactions contemplated by the Merger Agreement.
Section 2.2 Proxy. The Stockholder hereby revokes any and all prior
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proxies or powers-of-attorney in respect of any of the Shares and constitutes
and appoints Merger Sub or any nominee of Merger Sub, with full power of
substitution and resubstitution, at any time during the term of this Agreement,
as its true and lawful attorney and proxy (its "Proxy"), for
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and in its name, place and stead, to demand that the Secretary of the Company
call a special meeting of the stockholders of the Company for the purpose of
considering any matter referred to in Section 2.1 (if permitted under the
Company's Certificate of Incorporation or By-Laws) and to vote all of the
Stockholder's Shares as its Proxy, at every annual, special, adjourned or
postponed meeting of the stockholders of the Company, including the right to
sign his name (as Stockholder) to any consent, certificate or other document
relating to the Company that New Jersey law may permit or require as provided in
Section 2.1.
Section 2.3 No Ownership Interest. Except as set forth in Section
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2.1 and Section 2.2, nothing contained in this Voting Agreement shall be deemed
to vest in Merger Sub 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 and belong to the Stockholder.
Section 2.4 Evaluation of Investment. The Stockholder, by reason of
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his knowledge and experience in financial and business matters, believes himself
capable of evaluating the merits and risks of the investment in shares of the
Class C Preferred Stock of the Company and shares of preferred stock and common
stock of Surviving Corporation, contemplated by this Agreement and the Merger
Agreement. The Stockholder acknowledges receipt and review of a copy of the
Merger Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to Merger Sub as
follows:
Section 3.1 Authority Relative to This Agreement. The Stockholder
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has all necessary power and authority to execute and deliver this Agreement, to
perform his obligations hereunder and to consummate the transactions
contemplated hereby. Such Stockholder is an individual with the capacity to
enter into this Agreement. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by the other parties hereto, constitutes a legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally or by general principles governing the availability of
equitable remedies.
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Section 3.2 No Conflict. (a) The execution and delivery of this
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Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder shall not, (i) conflict with or violate any agreement,
arrangement, law, rule, regulation, order, judgment or decree to which the
Stockholder is a party or by which the Stockholder (or the Shares held of record
or Beneficially Owned by such Stockholder) is bound or affected or (ii) result
in any breach of or constitute a default (or an event that with notice or lapse
or time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by the Stockholder pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder (or the Shares held of record or Beneficially Owned by the
Stockholder) is bound or affected.
(b) The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity except for applicable
requirements, if any, of federal or state securities and antitrust laws.
Section 3.3 Title to the Shares. As of the date hereof, the
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Stockholder is the record or Beneficial Owner of the Shares listed opposite the
name of the Stockholder on the signature page hereto. The Shares listed opposite
the name of the Stockholder on the Stockholder's signature page hereto are all
the securities of the Company either held of record or Beneficially Owned by the
Stockholder. Except as set forth in Section 2.2, the Stockholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares held of record or Beneficially owned by the
Stockholder. The Shares listed opposite the name of the Stockholder on the
signature page hereto are owned free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, limitations on the
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever.
ARTICLE IV
COVENANTS OF THE STOCKHOLDER
Section 4.1 No Inconsistent Agreements. The Stockholder hereby
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represents, warrants, covenants and agrees that, except as contemplated by this
Agreement and the Merger Agreement, the Stockholder has not and shall not enter
into any voting agreement or grant a
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proxy or power of attorney with respect to the Shares held of record or
Beneficially Owned by the Stockholder.
Section 4.2 Transfer of Title. The Stockholder hereby covenants
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and agrees that the Stockholder will not, prior to the termination of this
Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign, pledge, hypothecate, transfer, exchange, or dispose of any Shares or
options, warrants or other convertible securities to acquire or purchase Company
Common Stock or Series C Preferred Stock (collectively, "Derivative Securities")
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or any other securities or rights convertible into or exchangeable for Company
Common Stock, owned either directly or indirectly by the Stockholder or with
respect to which the Stockholder has the power of disposition, whether now or
hereafter acquired without the prior written consent of Merger Sub (provided
nothing contained herein will be deemed to restrict the exercise or conversion
of Derivative Securities outstanding on the date hereof). The Stockholder hereby
agrees and consents to the entry of stop transfer instructions by the Company
against the transfer of any Shares inconsistent with the terms of this Section
4.2.
Section 4.3 Exchange of Shares. Prior to the Effective Time, the
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Stockholder shall exchange 164,384 shares of Common Stock for an equal number of
Shares of Class C Preferred Stock as contemplated by Section 5.16 of the Merger
Agreement pursuant to a plan of recapitalization adopted by the Company.
ARTICLE V
MISCELLANEOUS
Section 5.1 No Solicitation. From the date hereof until the
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Effective Time or, if earlier, the termination of the Merger Agreement in
accordance with its terms, the Stockholder (a) shall not have, or shall
immediately terminate any discussions with, any third party concerning a
Takeover Proposal and (b) shall not, and shall not authorize any officer,
director, employee, controlled affiliate, investment banker or other agents (in
such agency capacity), or the Stockholder to, directly or indirectly, (i)
solicit, engage in discussions or negotiate with any Person (whether such
discussions or negotiations are initiated by the Stockholder or otherwise) or
take any other action intended or designed to facilitate the efforts of any
Person, other than Merger Sub, relating to a Takeover Proposal, (ii) provide
information with respect to the Company or any of its subsidiaries to any
Person, other than Merger Sub, relating to a possible Takeover Proposal by any
person other than Merger Sub, (iii) enter into an agreement with any person,
other than Merger Sub, providing for a possible Takeover Proposal, or (iv) make
or authorize any statement, recommendation or solicitation in
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support of any possible Takeover Proposal by any Person, other than by Merger
Sub.
Section 5.2 Termination. This Agreement shall terminate upon the
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earlier to occur of (i) the Effective Time, (ii) the termination of the Merger
Agreement in accordance with its terms or (iii) unless extended by agreement of
each of the parties hereto, [June 30, 2000]. Upon such termination, no party
shall have any further obligations or liabilities hereunder; provided, however,
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that nothing in this Agreement shall relieve any party from liability for the
breach of any of its representations, warranties, covenants and agreements set
forth in this Agreement prior to such termination.
Section 5.3 Additional Shares. If, after the date hereof, the
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Stockholder acquires the right to vote any additional shares of the Common Stock
or Class C Preferred Stock (any such shares shall be referred to herein as
"Additional Shares"), including, without limitation, upon exercise or conversion
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of any Derivative Security or through any stock dividend or stock split, the
provisions of this Agreement applicable to the Shares shall be applicable to
such Additional Shares as if such Additional Shares had been outstanding Shares
as of the date hereof. The provisions of the immediately preceding sentence
shall be effective with respect to Additional Shares without action by any
Person immediately upon the acquisition by a Stockholder of record or Beneficial
Ownership of such Additional Shares.
Section 5.4 Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
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.
Section 5.5 Entire Agreement. This Agreement, if an to the extent
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entered into by the Stockholder and Merger Sub, constitutes the entire agreement
between Merger Sub and the Stockholder with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between the Merger Sub and the Stockholder with respect to the subject matter
hereof.
Section 5.6 Amendment. This Agreement may not be amended except by
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an instrument in writing signed by the parties hereto.
Section 5.7 Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule or 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
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materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereby
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 a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated.
Section 5.8 Notices. All notices and other communications given or
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made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to the Stockholder to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Wilmar Industries, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Drinker, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Merger Sub, to:
WM Acquisition, Inc.
c/o Parthenon Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Chase Capital Partners
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇'▇▇▇▇▇▇▇▇, Graev & Karabell
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 5.9 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state without giving
effect to the provisions thereof relating to conflicts of law.
Section 5.1 Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be an original and all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Stockholder and Merger Sub have caused this
Agreement to be duly executed on the date hereof.
WM ACQUISITION, INC.
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By:
Name:
Title:
____________________ Number of Shares: 2,013,536
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