EXHIBIT 2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of May 10, 2000, among Prudential
Mortgage Capital Company, LLC, a Delaware limited liability company ("Parent")
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and the holders listed on Schedule A attached hereto (each, a "Stockholder" and,
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collectively, the "Stockholders") of shares of common stock, par value $0.01 per
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share (the "Shares") of The WMF Group, Ltd., a Delaware corporation (the
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"Company").
R E C I T A L S:
WHEREAS Parent, Prudential Mortgage Capital Acquisition Corp., a
Delaware corporation that is a wholly-owned subsidiary of Parent (the
"Purchaser") and the Company propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement"), providing for the merger of the Purchaser with and into
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the Company (the "Merger"), upon the terms and subject to the conditions set
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forth in the Merger Agreement;
WHEREAS the execution and delivery of this Agreement by the parties
hereto is a condition precedent to Parent's willingness to enter into the Merger
Agreement;
WHEREAS each Stockholder owns the number of Shares set forth opposite
such Stockholder's name on Schedule A attached hereto (such Shares, together
with any other shares of capital stock of the Company acquired by such
Stockholders after the date hereof and during the term of this Agreement
(including, without limitation, through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Subject Shares");
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WHEREAS, Parent has undertaken and will continue to undertake
substantial expenses in connection with the negotiation and execution of the
Merger Agreement and the subsequent actions necessary to consummate the
transactions contemplated therein; and
WHEREAS, capitalized terms used herein without definition shall have
the respective meanings specified therefor in the Merger Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration
of its entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
hereto agree as follows:
A G R E E M E N T:
1. Representations and Warranties of Each Stockholder. Each
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Stockholder hereby, severally and not jointly, represents and warrants to Parent
as of the date hereof in respect of himself, herself or itself as follows:
(a) Authority. Such Stockholder has all requisite power and
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authority to enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly and validly authorized, executed
and delivered by such Stockholder and constitutes the valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights and by the effect of general
principles of equity. Neither the execution and delivery by such
Stockholder of this Agreement nor the performance by such Stockholder of
its obligations hereunder will violate or conflict in any material respect
with, result in a breach of any material provision of or constitute a
default under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust or any material license,
franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which such Stockholder is a party or by which
such Stockholder is bound.
(b) The Subject Shares. Such Stockholder is the record and
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beneficial owner of and has valid title to, the Subject Shares set forth
opposite such Stockholder's name on Schedule A attached hereto, free and
clear of any claims, liens, encumbrances and security interests whatsoever.
Except to the extent set forth in footnotes 1, 2, 3 and 4 to Schedule A
attached hereto, such Stockholder does not own, of record or beneficially,
any shares of capital stock of the Company other than the Subject Shares
set forth opposite such Stockholder's name on Schedule A attached hereto.
Such Stockholder has the sole right to vote such Subject Shares, and none
of such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Subject
Shares, except as contemplated by this Agreement.
2. Representation and Warranty of Parent. Parent hereby represents
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and warrants to each Stockholder that it has all requisite power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly authorized, executed and
delivered by Parent and constitutes the valid and binding obligation of Parent
enforceable against it in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws of general
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applicability relating to or affecting the enforcement of creditors' rights and
by the effect of general principles of equity. Neither the execution and
delivery by Parent of this Agreement nor the consummation by Parent of the
transactions contemplated hereby will: (a) violate or conflict in any material
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respect with, result in a breach of any material provision of, constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, result in the termination or in a right of
termination of, accelerate the performance required by or benefit obtainable
under, result in the vesting, triggering or acceleration of any payment or other
obligations pursuant to, or result in there being declared void, voidable,
subject to withdrawal, or without further binding effect, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust
or any material license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Parent is a party, by which it or
any of its properties are bound, or under which it or any of its properties are
entitled to a benefit; (b) other than the filings required under the HSR Act or
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any Exchange Act filings, require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity; or (c)
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violate in any material respect any laws applicable to Parent.
3. Covenants of Each Stockholder. Until the termination of this
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Agreement in accordance with Section 7, each Stockholder severally and not
jointly agrees as follows:
(a) At any meeting of the stockholders of the Company called to vote
upon the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with respect to
the Merger and the Merger Agreement is sought, such Stockholder shall vote
(or cause to be voted) its Subject Shares in favor of the adoption by the
Company of the Merger Agreement (as it may be amended from time to time,
provided that such amendment is not adverse to such Stockholder) and the
approval of the terms thereof and each of the transactions contemplated
thereby. Any vote cast in accordance with this Section 3(a) or in
accordance with Section 3(b) shall be cast in such manner as will ensure
that such vote is duly counted for purposes of determining whether a quorum
is present and for purposes of determining the result of such vote.
(b) At any meeting of the stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which such
Stockholder's vote, consent or other approval is sought, such Stockholder
shall vote (or cause to be voted) its Subject Shares against any (i)
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Acquisition Proposal or (ii) any amendment of the Company's certificate of
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incorporation or by-laws or other proposal, which transaction or amendment
or other proposal would be reasonably likely to impede, frustrate, prevent
or nullify the Merger or the Merger Agreement (as it may be amended from
time to time, provided such amendment is not
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adverse to such Stockholder), or any of the other transactions contemplated
by the Merger Agreement or change in any manner the voting rights of the
Shares. Such Stockholder further agrees not to enter into any agreement
inconsistent with the foregoing.
(c) Such Stockholder shall not, prior to the earliest of (i) the
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Effective Time and (ii) the termination of the Merger Agreement in
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accordance with its terms, (x) sell, transfer, give, pledge, assign or
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otherwise dispose of (including by gift) (collectively, "Transfer"),
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consent to any Transfer of, or enter into any contract, option or other
arrangement with respect to the Transfer of any or all of such
Stockholder's Subject Shares or any interest therein or (y) enter into any
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voting arrangement, whether by proxy, voting agreement or otherwise, in
connection with any Acquisition Proposal and agrees not to commit or agree
to take any of the foregoing actions other than Transfers to its Affiliates
provided that such transferee agrees to be bound by the terms hereof, and
Transfers pursuant to the terms of Section 3(d).
(d) In the event that Parent, Purchaser, or any affiliate thereof
conducts a tender offer in accordance with the Merger Agreement, such
Stockholder shall validly tender such Stockholder's Subject Shares and
shall not withdraw Subject Shares so tendered.
(e) Until after the earlier to occur of the Merger being consummated
or the Merger Agreement being terminated, such Stockholder, solely in its
capacity as stockholder, shall use all reasonable efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by the
Merger Agreement (as it may be amended from time to time, provided such
amendment is not adverse to such Stockholder).
(f) Such Stockholder, solely in its capacity as stockholder, shall
not take any action which would restrict, limit or frustrate in any way the
transactions contemplated by this Agreement.
4. Further Assurances. (a) From time to time, at any party's
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request and without further consideration, each other party shall execute and
deliver such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
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(b) By its execution of this Agreement, (i) each Stockholder
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acknowledges that it has been afforded the opportunity to consult with its legal
counsel and financial advisors with respect to its investment decision to
execute this Agreement and (ii) each Stockholder acknowledges that it has been
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afforded the opportunity to discuss the Merger Agreement with representatives of
Parent. Each Stockholder further acknowledges that it has otherwise investigated
this matter to its full satisfaction and will not seek rescission or revocation
of this Agreement or seek to withdraw or revoke any vote, irrevocable proxy or
irrevocable instruction delivered by it or on its behalf in connection
therewith.
5. Certain Events. Each Stockholder agrees that this Agreement and
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the obligations hereunder shall attach to such Stockholder's Subject Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Subject Shares shall pass, whether by operation of law or
otherwise, including without limitation such Stockholder's heirs, guardians,
administrators or successors. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Shares, or the acquisition of additional
Shares or other voting securities of the Company by any Stockholder, the number
of Subject Shares listed in Schedule A beside the name of such Stockholder shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional Shares or other voting securities of the Company issued
to or acquired by such Stockholder.
6. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Purchaser
may assign, as contemplated by Section 10.5 of the Merger Agreement, in its sole
discretion, any and all of its rights, interests and obligations hereunder to
Parent or any other affiliate of The Prudential Insurance Company of America.
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.
7. Termination. This Agreement, and all rights and obligations of
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the parties hereunder shall terminate upon the earlier of (a) the Effective Time
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and (b) the date upon which the Merger Agreement is terminated in accordance
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with its terms provided that if the Merger Agreement has been terminated for any
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reason, Sections 6, 7, 8, 9 and 10 shall survive for one year following such
termination.
8. General Provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
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(b) Notice. All notices and other communications hereunder shall be
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in writing and shall be deemed given if hand delivered or sent by overnight
courier (providing proof of delivery) to Parent in accordance with Section
10.4 of the Merger Agreement and to the Stockholders at their respective
addresses set forth on Schedule A attached hereto (or at such other address
for a party as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
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Sections, such reference shall be to 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. Wherever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(d) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) (i)
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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 and (ii) is not intended to confer upon any
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person other than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
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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 law thereof.
9. Enforcement. Each Stockholder agrees that irreparable damage
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would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
Each Stockholder accordingly agrees that Parent 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
United States located in the Southern District of New York or in a New York
state court, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, Parent and each Stockholder (a)
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consent to submit such party to the personal jurisdiction of any Federal court
located in the Southern District of New York or any New York state court in the
event any dispute arises out of
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this Agreement or any of the transactions contemplated hereby, (b) agree that
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such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (c) agree that such party
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will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than a Federal court sitting in the state
of New York or a New York state court and (d) waive any right to trial by jury
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with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
10. Public Announcements. Each party to this Agreement will consult
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with the other party before issuing, and provide the other party with the
opportunity to review and comment upon, any press release or other public
statements with respect to the transactions contemplated by this Agreement that
expressly identifies any of the Stockholders, and shall not issue any such press
release or make any such public statement without the prior approval of the
other party, which approval shall not be unreasonably withheld.
11. Stop Transfer. Each Stockholder agrees with and covenants to
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Parent that such Stockholder shall not request that the Company register the
transfer of any certificate or uncertificated interest representing any of such
Stockholder's Subject Shares, unless such transfer is made in compliance with
this Agreement. Each Stockholder agrees, with respect to any Subject Shares in
certificated form, that such Stockholder will submit to the Company, within ten
business days after the date hereof, the certificates representing such Subject
Shares in order for the Company to inscribe upon such certificates the following
legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS AGREEMENT DATED AS OF MAY 10, 2000, AND, PURSUANT TO THE TERMS
THEREOF, MAY NOT BE SOLD, TRANSFERRED, GIVEN, PLEDGED, ASSIGNED OR OTHERWISE
DISPOSED OF, AND ARE SUBJECT TO FURTHER RESTRICTIONS REGARDING, AMONG OTHER
THINGS, VOTING RIGHTS AND CERTAIN INDIRECT TRANSFERS AS SET FORTH IN SUCH
STOCKHOLDERS AGREEMENT." Each Stockholder agrees that within ten business days
after the date hereof, such Stockholder will no longer hold any Subject Shares,
whether certificated or uncertificated, in "street name" or in the name of any
nominee.
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IN WITNESS WHEREOF, Parent and the Stockholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
Prudential Mortgage Capital Company, LLC
By: /s/ ▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Stockholders:
Phemus Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
Demeter Holdings Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
Capricorn Investors II, L.P.
By Capricorn Holdings, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Manager
Capricorn Holdings, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
Commonwealth Overseas Trading
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇-▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇-▇▇▇▇▇▇▇▇
----------------------------------
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
/s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
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SCHEDULE A
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Share Ownership
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Shares Underlying
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Stock Options
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Name and Address
of Stockholder Existing Shares Vested Unvested Total
------------- --------------- ------ -------- -----
Demeter Holdings Corporation 5,134,483 20,000 10,000 5,164,483
c/o Charlesbank Capital Partners,
LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phemus Corporation 281,419 --- --- 281,419
c/o Charlesbank Capital Partners,
LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Capricorn Investors II, L.P. /(1)/ 1,730,532 10,000 5,000 1,745,532
▇▇ ▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Capricorn Holdings, Inc. /(1)/ 163,533 --- --- 163,533
▇▇ ▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /(2)/ 55,415 118,867 41,800 216,082
c/o WMF Group Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Shares Underlying
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Stock Options
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Name and Address
of Stockholder Existing Shares Vested Unvested Total
------------- --------------- ------- -------- -----
Commonwealth Overseas Trading 145,040 --- --- 145,040
Company Limited
c/o Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇
The Bank of N.T. ▇▇▇▇▇▇▇▇▇▇▇ &
Son, Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. /(3)/ --- 10,000 5,000 15,000
Al-Tuwaijri
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III /(4)/ 169,464 130,290 5,000 304,754
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ /(5)/ 210,033 10,000 5,000 225,033
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
#▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(1) Does not include 10,000 shares owned by two revocable trusts benefiting
members of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.'s family.
(2) Excludes 20,000 shares of restricted stock subject to forfeiture unless
certain events occur and 145,040 shares of common stock owned by
Commonwealth Overseas Trading Company Limited, over which ▇▇. ▇▇▇▇▇▇▇▇▇▇
and ▇▇. ▇▇-▇▇▇▇▇▇▇▇ share voting power.
(3) Excludes 145,040 shares of common stock owned by Commonwealth Overseas
Trading Company Limited, over which ▇▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇. ▇▇-▇▇▇▇▇▇▇▇
share voting power.
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(4) Notwithstanding Section 1(b) of the Agreement, the number of Subject Shares
includes 35,000 shares owned by the ▇▇▇▇▇▇ Family Foundation, a charitable
foundation of which ▇▇. ▇▇▇▇▇▇ is an officer, and 6,000 shares held of
record by ▇▇. ▇▇▇▇▇▇ as custodian for his minor granddaughter.
(5) Excludes 23,108 shares owned by a trust benefiting members of ▇▇. ▇▇▇▇▇▇'▇
family of which ▇▇. ▇▇▇▇▇▇ has no voting or investment control.
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