EXHIBIT 2
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this "Agreement"), dated as
of January 28, 2004, is entered into by and between Sumitomo Corporation of
America, a New York corporation ("Parent") and Friedman, Billings, Xxxxxx Group,
Inc. ("Stockholder").
WHEREAS, Oxford Finance Acquisition Corp., a Delaware
corporation ("Purchaser") and Oxford Finance Corporation, a Maryland corporation
(the "Seller"), have entered into an Asset Purchase Agreement, dated as of the
date hereof (as the same may be amended or supplemented, the "Purchase
Agreement"), providing for, among other things, the sale by Seller and purchase
by Purchaser of all Seller's assets (the "Asset Sale"), upon the terms and
subject to the conditions set forth in the Purchase Agreement;
WHEREAS, as of the date hereof, Stockholder is the beneficial
owner of 1,142,050 shares of common stock, par value $0.01 per share ("Company
Shares"), of Seller (such Company Shares, together with any other shares of
capital stock of Seller acquired by Stockholder after the date hereof and during
the term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), being collectively referred to herein as the
"Subject Shares"); and
WHEREAS, as a condition to Parent's willingness to cause
Purchaser to enter into the Purchase Agreement, Parent has required that
Stockholder agree, and in order to induce Parent to cause Purchaser to enter
into the Purchase Agreement, Stockholder is willing to agree, to (i) vote all of
the Subject Shares in favor of the proposal to adopt the Purchase Agreement and
to provide an irrevocable proxy in connection with such agreement to vote the
Subject Shares in such manner; and (ii) such other matters as are set forth
herein.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained herein and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and subject to the conditions set forth herein, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used, but not
otherwise defined, herein shall have the respective meanings provided in the
Purchase Agreement.
Section 2. Voting Agreement; Irrevocable Proxy. From the date of
this Agreement and ending on the Termination Date (as defined below),
Stockholder agrees with Parent as follows:
(a) Agreement to Vote the Subject Shares. Without in any way
limiting Stockholder's right to vote the Subject Shares in its sole discretion
with respect to any other matters that may be submitted to a stockholder vote,
consent or other approval (including by written consent), at any meeting of the
stockholders of Seller called upon to approve and adopt the Purchase Agreement
and the Asset Sale or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval (including written consent) with
respect to the Purchase Agreement and the Asset Sale is sought, Stockholder
shall vote (or cause to be voted) the Subject Shares as follows:
(i) in favor of the Asset Sale, the adoption by the
stockholders of Seller of the Purchase Agreement and approval of
the other transactions contemplated by the Purchase Agreement;
(ii) against any action or agreement that is
reasonably likely to result in a breach in any material respect
of any covenant, representation or warranty or any other
obligation of Seller under the Purchase Agreement; and
(iii) against (x) any Takeover Proposal or any merger
agreement or merger, consolidation, combination, sale of
substantially all of Seller's assets (other than the Purchase
Agreement and the Asset Sale), sale or issuance of securities of
Seller, reorganization, joint venture, recapitalization,
dissolution, liquidation or winding up of or by Seller and (y)
any amendment of the Seller's articles of incorporation or
bylaws or equivalent organizational documents or other proposal
or transaction involving Seller which amendment or other
proposal or transaction would or could reasonably be expected to
impede, frustrate, prevent, nullify or result in a breach of any
representation, warranty or covenant or any other obligation or
agreement of Seller under or with respect to the Asset Sale, the
Purchase Agreement or any of the transactions contemplated by
the Purchase Agreement or by this Agreement.
(b) Irrevocable Proxy. Stockholder hereby irrevocably grants
to, and appoints, Parent and any individual who shall be designated by Parent,
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of Stockholder, to vote the Subject Shares, or
grant a consent or approval in respect of the Subject Shares, at any meeting of
stockholders of Seller or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought, in the
manner contemplated by Section 2(a) hereof. Stockholder understands and
acknowledges that Purchaser is entering into the Purchase Agreement in reliance
upon Stockholder's execution and delivery of this Agreement. STOCKHOLDER HEREBY
AFFIRMS THAT THE PROXY SET FORTH IN THIS SECTION 2(b) IS COUPLED WITH AN
INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS THIS AGREEMENT TERMINATES IN
ACCORDANCE WITH ITS TERMS AND THAT NO SUBSEQUENT PROXIES WITH RESPECT TO THE
SUBJECT SHARES SHALL BE GIVEN (AND IF GIVEN SHALL NOT BE EFFECTIVE). Stockholder
hereby further affirms that the irrevocable proxy is given in connection with
the execution of the Purchase Agreement and that such irrevocable proxy is given
to secure the performance of the duties of Stockholder under this Agreement.
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 2-507 of the Maryland General Corporation Law (the "MGCL"), subject to
the terms of this Section 2(b). Subject to the foregoing, the power of attorney
granted by Stockholder is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of Stockholder.
Section 3. Representations, Warranties and Covenants of
Stockholder. Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership. Stockholder is the beneficial owner of
1,142,050 Company Shares, free and clear of any Liens whatsoever, except
Permitted Liens or as created by this
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Agreement. Stockholder does not own, of record, any shares of capital stock of
Seller other than such Company Shares. Stockholder has the sole right to vote
such Company Shares, and none of such Company Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such Company Shares, except as contemplated by this Agreement.
(b) Authority; No Conflict. Stockholder has all requisite
power and authority to enter into this Agreement and to perform the obligations
required to be performed by it hereunder. This Agreement has been duly executed
and delivered by Stockholder and constitutes a legal, valid and binding
obligation of Stockholder enforceable against Stockholder in accordance with its
terms except as may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability affecting creditors' rights
and by general equity principles. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby and
compliance with the terms hereof would not, conflict with, result in any
violation of or constitute (with or without notice or lapse of time or both)
default under, any provision of any trust agreement, loan or credit agreement,
bond, note, mortgage, indenture, lease, partnership agreement or other binding
contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise or license or any statute, law,
ordinance, rule, regulation, judgment, order, notice or decree in any case
applicable to Stockholder or to any of Stockholder's property or assets.
(c) No Filings; Consents. No consents or approvals of or
filings or registrations by the Stockholder with any Governmental Entity are
necessary in connection with (i) the execution and delivery by Stockholder of
this Agreement and (ii) the performance by Stockholder of its obligations under
this Agreement, including the grant of the irrevocable proxy pursuant to Section
2(b) hereof.
(d) No Prior Irrevocable Proxies Effective. Stockholder
represents and warrants that any proxies heretofore given in respect of the
Subject Shares are not irrevocable and that any such proxies have been or are
hereby revoked.
(e) Restriction on Transfer and Proxies. Stockholder agrees
not to voluntarily transfer, sell, assign, exchange, pledge or otherwise dispose
of (including by gift) or encumber any of the Subject Shares, or to make any
offer or agreement relating thereto, at any time prior to the termination of
this Agreement; provided, however, that Stockholder may transfer the Subject
Shares to any person who is or becomes a party to this Agreement bound by all of
the obligations of Stockholder hereunder prior to such transfer and to the
extent such transfer is made in accordance with all applicable laws.
Furthermore, Stockholder shall not, except as contemplated by this Agreement,
directly or indirectly, grant any proxies or powers of attorney with respect to
the Subject Shares, deposit the Subject Shares into a voting trust or enter into
a voting agreement or any other arrangement with respect to the Subject Shares
and shall not commit or agree to take any of the foregoing actions.
(f) No Solicitation. Stockholder shall be deemed to be a
Representative at all times for purposes of Section 8.2 of the Purchase
Agreement (regardless of whether Stockholder is in fact a Representative at the
relevant time) and shall comply with the terms of Section 8.2 of the Purchase
Agreement as if it were a party thereto.
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(g) Waiver of Appraisal Rights. Stockholder hereby waives,
and agrees not to exercise or assert, any appraisal or similar rights under
Section 3-208 of the MGCL or other applicable law in connection with the Asset
Sale.
(h) Further Assurances. Stockholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as Parent may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
Section 4. Representations and Warranties of Parent. Parent
hereby represents and warrants to Stockholder that Parent has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by Parent and constitutes a legal, valid and binding
obligation of Parent enforceable against Parent in accordance with its terms
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability affecting creditors' rights and by
general equity principles. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, result in any violation of, or
constitute (with or without notice or lapse of time or both) default under, any
provisions of the certificate of incorporation or bylaws of Parent or any trust
agreement, loan or credit agreement, bond, note, mortgage, indenture, lease or
other contract, agreement, obligation, commitment, arrangement, understanding,
instrument, permit, concession, franchise or license or any statute, law,
ordinance, rule, regulation, judgment, order, notice or decree applicable to
Parent or any of Parent's property or assets.
Section 5. Certain Events. Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the 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 the respective successors of Stockholder. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of Seller affecting the Company Shares or
the acquisition of additional shares of Company Shares or other voting
securities of Seller by Stockholder (whether by purchase, conversion or
otherwise), the number of Subject Shares shall be adjusted appropriately and
this Agreement and the obligations hereunder shall attach to any additional or
decreased shares of Company Shares or other voting securities of Seller issued
to or acquired or disposed of by Stockholder.
Section 6. Stockholder Capacity. Stockholder enters into this
Agreement solely in Stockholder's capacity as the record and beneficial owner of
the Subject Shares. If any Stockholder is or becomes during the term hereof a
director or officer of Seller, such Stockholder makes no agreement or
understanding in this Agreement in Stockholder's capacity as such director or
officer. Nothing in this Agreement shall limit or affect any actions taken or to
be taken by Stockholder in Stockholder's capacity as an officer or director of
Seller.
Section 7. No Ownership Interest. Except as expressly set forth
in this Agreement, nothing contained in this Agreement shall be deemed to vest
in Parent any direct or indirect ownership or incidence of ownership of or with
respect to any Subject Shares. All
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rights, ownership and economic benefits of and relating to any Subject Shares
shall remain and belong to Stockholder, and Parent shall not have any authority
to exercise any power or authority to manage, direct, superintend, restrict,
regulate, govern or administer any of the policies or operations of Seller or
exercise any power or authority to direct Stockholder in the voting of any of
the Subject Shares, except as otherwise expressly provided in this Agreement.
Section 8. Termination.
(a) Subject to the provisions of Section 8(b) of this
Agreement, this Agreement shall terminate, and the provisions hereof shall be of
no further force or effect, upon the earlier of September 30, 2004, the Closing
Date or the termination of the Purchase Agreement in accordance with Article IX
thereof (the "Termination Date"); provided, however, that notwithstanding
anything to the contrary contained in this Agreement, no party hereto shall be
relieved of or released from any liabilities or damages arising out of a willful
breach of its covenants or a willful breach of its representations or warranties
contained in this Agreement prior to the termination of this Agreement.
(b) This Agreement will terminate without any further action
on the part of any party hereto on the Termination Date; provided, however, that
if the Purchase Agreement is terminated prior to the Closing Date, then each of
Section 1, Section 2(b), Section 3(f), Section 4, Section 6, Section 7, this
Section 8 and Section 9 will survive the termination of the Purchase Agreement
until the earlier of (a) the closing of an alternative disposition resulting
from a Takeover Proposal and (b) the payment by Seller to Purchaser of the
Termination Fee as provided in Article IX of the Purchase Agreement.
Section 9. General Provisions.
(a) Modification. No supplement, modification or amendment
of this Agreement will be binding unless made in a written instrument that is
signed by each of the parties hereto and that specifically refers to this
Agreement.
(b) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
(c) Interpretation. When a reference is made in this
Agreement or to a Section, 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. This Agreement is the result of the joint
efforts of Parent and Stockholder, and each provision hereof has been subject to
the mutual consultation, negotiation and agreement of the parties and there
shall be no construction against any party based on any presumption of that
party's involvement in the drafting thereof. The words "include", "includes" or
"including" shall be deemed to be followed by the words "without limitation."
The term "ordinary course of business" (or similar terms) shall be deemed to be
followed by the words "consistent with past practice."
(d) Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become
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effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
(e) Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein) (i)
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 person other
than the parties hereto any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
(g) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, in whole or in
part (whether by operation of law or otherwise), by Stockholder, on the one
hand, without the prior written consent of Parent nor by Parent, on the other
hand, without the prior written consent of Stockholder, and any attempt to make
any such assignment without such consent shall be null and void; provided that
Parent may assign, in its sole discretion, any or all of its rights, interests
and obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent. 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.
(h) Enforcement. The parties agree that irreparable damage
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. 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 addition to any other remedy to
which they are entitled at law or in equity. The parties hereby (i) submit to
the jurisdiction of any federal or state court sitting in the State of New York,
(ii) agree not to object to venue in such courts or to claim that such forum is
inconvenient and (iii) agree that notice or the service of process in any
proceeding shall be properly served or delivered if delivered in the manner
contemplated by Section 11(k) hereof. IN ADDITION, EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING
RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY. Without limiting the generality of the foregoing, the
parties hereto expressly agree that the obligations of Stockholder set forth in
Section 2 hereof shall be subject to the foregoing provisions of this Section
11(h).
(i) Severability. This Agreement shall be deemed severable;
the invalidity or unenforceability of any term or provision of this Agreement
shall not affect the validity or enforceability of the balance of this Agreement
or of any other term hereof, which shall remain in full force and effect. If of
any of the provisions hereof are determined to be invalid or unenforceable, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible.
(j) Waiver. The parties may (i) extend the time for the
performance of any of the obligations or other acts of the other parties, (ii)
waive any inaccuracies in the representations
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and warranties contained in this Agreement or in any document delivered pursuant
to this Agreement or (iii) waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver will be valid only if set forth in an instrument in
writing, signed on behalf of each party hereto. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise will not
constitute a waiver of those rights.
(k) Notices. All notices, requests, claims, demands and
other communications under this Agreement will be in writing and will be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such address for a
party as will be specified by like notice):
(i) if to Stockholder, to:
Friedman, Billings, Xxxxxx Group, Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxx
Facsimile No.: (000) 000-0000
(ii) if to Parent or Purchaser, to:
Sumitomo Corporation of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx, Vice President
Business Investment
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
(l) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by any party will not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed as of the date first written above.
SUMITOMO CORPORATION OF AMERICA
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Xxxxxxxx Xxxxxxxx
Chief Financial Officer
FRIEDMAN, BILLINGS, XXXXXX GROUP, INC.
By: /s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx
Managing Director
