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EXHIBIT 2
XXXXXXX VOTING AGREEMENT
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VOTING AGREEMENT, dated as of February 4, 2000 (this "AGREEMENT"), by and
among BNCM Acquisition Co., a Delaware corporation ("MERGER SUB"), the Xxxxxxx
Family Trust (the "STOCKHOLDER") and, for the purposes of Section 3 hereof, Xxxx
X. Xxxxxxx ("XXXXXXX").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Merger Sub and BNC Mortgage, Inc., a
Delaware corporation (the "COMPANY"), are entering into an Agreement and Plan of
Merger (as such agreement may hereafter be amended from time to time, the
"MERGER AGREEMENT"; capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement) pursuant to which
Merger Sub will be merged with and into the Company, with the Company as the
Surviving Corporation (the "MERGER");
WHEREAS, the Stockholder owns, beneficially and of record, 1,549,717 shares
(the "SHARES") of Common Stock of the Company; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Merger Sub has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement; and further the
Stockholder has agreed to enter into this Agreement strictly in its capacity as
a beneficial owner of the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Provisions Concerning the Shares. (a) The Stockholder hereby agrees that
during the period commencing on the date hereof and continuing until this
provision terminates pursuant to Section 5 hereof, at any meeting of the holders
of shares of Common Stock of the Company, however called, or in connection with
any written consent of the holders of shares of Common Stock of the Company, the
Stockholder shall vote (or cause to be voted) the Shares held of record or
Beneficially Owned (as defined below) by the Stockholder, whether heretofore
owned or hereafter acquired, in favor of the Merger and the adoption of the
Merger Agreement and any actions required in furtherance thereof and hereof.
(b) The Stockholder shall not enter into any agreement or understanding
with any Person (as defined below) the effect of which would be inconsistent or
violative of the provisions of this Agreement.
(c) For purposes of this Agreement:
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"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any securities
shall mean having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing; without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act; and
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
(d) In the event of a stock dividend or distribution, or any change in the
Common Stock of the Company by reason of any stock dividend, stock split,
recapitalization, reclassification, combination, exchange of shares, merger or
the like, the term "SHARES" as used in this Agreement shall be deemed to refer
to and include the Shares as well as all such stock dividends and distributions
and any shares or other securities into which or for which any or all of the
Shares may be converted, changed or exchanged.
2. Representations and Warranties. As of the date hereof, the Stockholder
hereby represents and warrants to Merger Sub as follows:
(a) Ownership of Shares. The Stockholder is the record and Beneficial Owner
of all of the Shares. On the date hereof, the Shares constitute all of the
shares of Common Stock of the Company owned of record or Beneficially Owned by
the Stockholder, the Shares constitute all of the shares of Common Stock of the
Company Beneficially Owned by the Stockholder. The Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Section 1 hereof, shared power of disposition and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
the Shares, with no limitations, qualifications or restrictions on such rights
(subject to applicable securities laws).
(b) Power; Binding Agreement. The Stockholder has the legal capacity, power
and authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly authorized, executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity). There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Stockholder is settlor or trustee or
any other person whose consent is required for the execution and delivery of
this
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Agreement or the consummation by the Stockholder of the transactions
contemplated hereby.
(c) No Conflicts. (i) Except for filings under the HSR Act, if any, and
filings under the Exchange Act, no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof will (A) result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any declaration of trust, note, bond, mortgage,
indenture, security or pledge agreement, voting agreement, stockholders'
agreement or voting trust, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets may be bound, or (B) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable to
the Stockholder or any of the Stockholder's properties or assets.
(e) Reliance by Merger Sub. The Stockholder understands and acknowledges
that Merger Sub is entering into the Merger Agreement in reliance upon execution
and delivery of this Agreement by the Stockholder.
(f) Sophistication. The Stockholder acknowledges being an informed and
sophisticated investor and, together with the Stockholder's advisors, has
undertaken such investigation as they have deemed necessary, including the
review of the Merger Agreement and this Agreement, to enable the Stockholder to
make an informed and intelligent decision with respect to the Merger Agreement
and this Agreement and the transactions contemplated thereby and hereby.
(g) No Broker. No broker, investment banker, financial adviser or other
Person is entitled to any commission, broker's fee, finder's fee, adviser's fee
or similar fee in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the Stockholder.
3. No Solicitation. (a) From and after the date hereof and continuing until
this provision terminates pursuant to Section 5 hereof, neither the Stockholder
nor Xxxxxxx shall directly or indirectly, initiate, solicit or encourage
(including by way of furnishing non-public information or assistance), or take
any other action to facilitate, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Takeover Proposal
with respect to the Company or enter into or maintain or continue discussions or
negotiate with any Person in furtherance of such inquiries or to obtain such a
Takeover Proposal or agree to or endorse any such Takeover Proposal, and the
Stockholder or Xxxxxxx shall promptly notify Merger Sub orally (in all events
within 24 hours) and in writing (as promptly thereafter as practicable)
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of the material terms and status of all inquiries and proposals which the
Stockholder or Xxxxxxx or any agent of the Stockholder or Xxxxxxx may receive
after the date hereof relating to any of such matters and, if such inquiry or
proposal is in writing, the Stockholder or Xxxxxxx shall deliver to Merger Sub a
copy of such inquiry or proposal promptly; provided, however, that,
notwithstanding any other provision of this Agreement, Xxxxxxx may take any
action in his capacity as a director or officer of the Company as the board of
directors of the Company directs him to take in compliance with Section 6.04 of
the Merger Agreement or in order to permit the Board to comply with its
fiduciary duties under applicable law as advised by counsel. The Stockholder and
Xxxxxxx will immediately cease and cause to be terminated any existing
activities, discussions or negotiations, with any parties conducted heretofore
with respect to any of the foregoing.
(b) Merger Sub acknowledges that this Agreement is entered into by the
Stockholder and Xxxxxxx in their capacity as a beneficial owner of the Shares,
and that nothing in this Agreement shall in any way restrict or limit Xxxxxxx
from taking any action in his capacity as a director or officer of the Company
or otherwise fulfilling his fiduciary obligations as a director or officer of
the Company, notwithstanding that any such action would be inconsistent with or
violative of the Stockholders' obligations under this Agreement if taken in his
capacity as a beneficial owner of the Shares.
4. Restriction on Transfer; Proxies; Non-Interference; Stop Transfers; etc.
(a) The Stockholder shall not, directly or indirectly, during the period
commencing on the date hereof and continuing until this provision terminates
pursuant to Section 5 hereof: (i) except as contemplated by the Merger Agreement
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or grant or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Shares or any interest therein; (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any Shares into a
voting trust or enter into a voting agreement with respect to any Shares; or
(iii) take any action that would make any of the Stockholder's representations
or warranties contained herein untrue or incorrect or have the effect of
preventing or disabling the Stockholder from performing his/her respective
obligations under this Agreement; provided that the foregoing shall not prevent
the Stockholder from pledging any of the Shares to a bank or other financial
institution or to prevent such bank or financial institution from selling the
Shares on foreclosure so long as the Stockholder retains the right to vote such
Shares if the pledge has not been foreclosed upon.
(b) Without limiting the generality of Section 4(a) above, the Stockholder
agrees with, and covenants to, Merger Sub that the Stockholder shall not, during
the period set forth in Section 4(a), request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing the Shares, unless such transfer is made in compliance with this
Agreement.
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5. Termination. Except as otherwise provided herein, the covenants and
agreements contained in Sections 1, 3 and 4 hereof shall terminate (i) in the
event the Merger Agreement is terminated in accordance with the terms thereof,
upon such termination, and (ii) in the event the Merger is consummated, upon the
Effective Time. Notwithstanding anything to the contrary herein no termination
of this Agreement shall relieve any party of liability for a breach hereof prior
to termination.
6. Further Assurances. From time to time, at the other party's request and
without further consideration, the Stockholder and Merger Sub shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
7. Entire Agreement. This Agreement and the Merger Agreement constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
8. Certain Events. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
Person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without limitation,
the Stockholder's heirs, executors, guardians, administrators, trustees or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
9. Assignment. This Agreement shall not be assigned by any party hereto, by
operation of law or otherwise, without the prior written consent of the other
party, and any purported assignment without such consent shall be null and void;
provided, however, that Merger Sub may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly owned
subsidiary of Merger Sub without the consent of the Stockholder. All covenants
and agreements contained in this Agreement by or on behalf of the parties hereto
shall be binding on and inure to the benefit of the respective successors, heirs
and permitted assigns of the parties hereto.
10. Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except upon the
execution and delivery of a written agreement executed by each of the parties
hereto.
11. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses: (i) if to Merger Sub, to its
address set forth in the Merger Agreement; and
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(ii) if to the Stockholder, to the address set forth under the Stockholder's
signature on the signature page hereto; or, in each case, to such other address
as the Person to whom notice is given may have previously furnished to the
others in writing in the manner set forth above.
12. 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 so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. 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.
13. Specific Performance. The Stockholder recognizes and acknowledges that
a breach by it of any covenants or agreements contained in this Agreement will
cause Merger Sub to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore the Stockholder agrees that in
the event of any such breach Merger Sub party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which Merger Sub may be
entitled, at law or in equity.
14. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
15. No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
16. No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any Person who or which is not
a party hereto other than Mortgage Investco LLC who shall be a third party
beneficiary of the rights of Merger Sub hereunder.
17. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
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18. Waiver of Jury Trial. The parties hereto waive all right to trial by
jury in any action or proceeding to enforce or defend any rights under this
Agreement and any document executed in connection herewith.
19. Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
[signature page follows]
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IN WITNESS WHEREOF, Merger Sub and the Stockholder have executed and
delivered this Agreement as of the day and year first above written.
BNCM ACQUISITION CO.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
XXXXXXX FAMILY TRUST
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, as co-trustee
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, as co-trustee
c/o Xxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
