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EXHIBIT 10.35
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WARRANT PIGGYBACK RIGHTS AGREEMENT
DELIVERED TO: THE BOARD OF TRUSTEES OF THE
POLICEMEN AND FIREMEN RETIREMENT
SYSTEM OF THE CITY OF DETROIT
BY: MCA FINANCIAL CORP.
DATE: MARCH 6, 1998
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WARRANT PIGGYBACK RIGHTS AGREEMENT
THIS WARRANT PIGGYBACK RIGHTS AGREEMENT ("AGREEMENT") is made this
March 6, 1998, between MCA Financial Corp., a Michigan corporation (the
"Company"), and The Board of Trustees of The Policemen and Firemen Retirement
System of The City of Detroit (the "Fund").
RECITALS
A. Simultaneously with the execution and delivery hereof, the Company
and the Fund are executing and delivering a Common Stock Warrant [dated of even
date herewith (together with all amendments, modifications, and extensions
thereto, and restatements thereof) is hereinafter referred to as "Warrant"] and
Warrant Put Agreement [dated of even date herewith (together with all
amendments, modifications, and extensions thereto, and restatements thereof) is
hereinafter referred to as "Warrant Put Agreement"].
B. Pursuant to the Warrant, the Company is obligated to deliver to the
Fund the Warrant Shares (as defined in the Warrant).
C. The execution and delivery of this Agreement is incident to the
execution and delivery of the Warrant and Warrant Put Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the following respective meanings:
(a) "AGREEMENT" shall mean this Agreement, and all
amendments, modifications and extensions thereto, and restatements
thereof, from time to time, in accordance with the terms hereof.
(b) "COMMISSION" shall mean the Securities and
Exchange Commission or any other federal agency at the time
administering the Securities Act.
(c) "COMPANY" shall mean MCA Financial Corp., a
Michigan corporation.
(d) "EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as the same has been or shall be amended.
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(e) "FUND" shall mean The Board of Trustees of the
Policemen and Firemen Retirement System of the City of Detroit.
(f) "INDEMNIFIED PARTY" shall mean a party entitled
to indemnification under Section 5 of this Agreement.
(g) "INDEMNIFYING PARTY" shall mean the party
required to provide indemnification under Section 5 of this Agreement.
(h) "PUBLIC OFFERING" shall have the meaning set
forth in the Warrant Put Agreement.
(i) "OTHER SHAREHOLDERS" shall mean, collectively,
officers or directors of the Company or any of the subsidiaries who own
Common Stock of the Company or other holders of the Company Common
Stock who are entitled, by contract with the Company, to have their
common stock included in a registration of the Company securities.
(j) The terms "REGISTER", "REGISTERED" and
"REGISTRATION" shall refer to a registration effected by preparing and
filing a registration statement in compliance with the Securities Act
and applicable rules and regulations thereunder, and the declaration or
ordering of the effectiveness of such registration statement.
(k) "REGISTRATION EXPENSES" shall mean all expenses
incurred by the Company in compliance with Sections 2 and 3, including,
without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, the fees and disbursements of counsel to the Fund in
connection with the registration of the Warrant Shares and the expense
of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company,
which shall be paid in any event by the Company).
(l) "SECURITIES ACT" shall mean the Securities Act of
1933, as the same has been or shall be amended.
(m) "SELLING EXPENSES" shall mean all underwriting
discounts and selling commissions applicable to the sale of securities
registered.
(n) "WARRANT" shall mean the Warrant as defined in
the Recitals hereof.
(o) "WARRANT PUT AGREEMENT" shall mean the Warrant
Put Agreement between the Company and the Fund dated of even
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date herewith, and all amendments, modifications and extensions
thereto, and statements thereof, from time to time.
(p) "WARRANT SHARES" shall mean the Warrant Shares as
defined in the Warrant.
2. PIGGYBACK RIGHT.
(a) INCLUSION IN OFFERING. If at any time prior to
January 31, 2010, the Company shall determine to register any of its
securities either for its own account or the account of a security
holder or holders, other than a registration relating solely to
employee benefit plans, a registration relating solely to a Commission
Rule 145 transaction, or a registration on any registration form which
does not include substantially the same information as would be
required to be included in a registration statement covering the sale
of the common stock of the Company , the Company will:
(i) promptly give to the Fund written notice
thereof (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state
securities laws and such other information as the Fund may
require including projected Registration Expenses and Selling
Expenses); and
(ii) include in such registration (and any
related qualification under blue sky laws or other compliance)
and in any underwriting involved therein all or any portion of
the Warrant Shares specified in a written request or requests
made by the Fund within Thirty (30) Business Days after
receipt of the written notice from the Company described in
Section 2(a)(i) above.
(b) UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Fund as a part of the
written notice given pursuant to Section 2(a)(i). In such event the
right of the Fund to registration pursuant to this Section 2 shall be
conditioned upon the Fund's participation in such underwriting and the
inclusion of the Warrant Shares designated by the Fund in the
underwriting. The Fund shall (together with the Company and any Other
Shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for the underwriting by the
Company. Notwithstanding any other provision of this Section 2, if the
underwriter advises the Company and the Fund in writing that marketing
factors require a limitation on the number of shares to be
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underwritten, the underwriter may limit, on a pro-rata basis based upon
the number of shares the Company, the Other Shareholders and the Fund
proposed to include in the registration and underwriting, the number of
securities of the Company, the Other Shareholders and the Fund, to be
included in the registration and underwriting. The Company shall so
advise the Fund and all other holders of securities requesting
registration, and the securities entitled to be included in the
registration and underwriting shall be allocated pro-rata. If the Fund
disapproves of the terms of any such underwriting, including the amount
of securities to be included in the registration after giving effect to
the foregoing sentence, the Fund may elect to withdraw therefrom by
written notice to the Company and the underwriter, the amount of
Warrant Shares it so designates, and the remaining Warrant Shares shall
be included in such underwriting. Any Warrant Shares or other
securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration, and the allocation (if any) shall be
adjusted accordingly.
(c) WITHDRAWAL OR DELAY OF REGISTRATION. The
provisions of Sections 2(a) and (b) notwithstanding, if, at
any time after giving written notice of its intention to
register any securities and prior to the effective date of the
registration statement filed in connection with such
registration, the Company shall determine for any reason not
to register or to delay registration of such securities, the
Company may, at its election, give written notice of such
determination to the Fund and, thereupon, (i) in the case of
a determination not to register, shall be relieved of its
obligation to register all or any portion of Warrant Shares so
designated in connection with such registration (but not from
its obligation, if any, to pay Registration Expenses in
connection therewith), without prejudice, however, to the
right of the Fund, if applicable, to include all or any
portion of the Warrant Shares in a subsequent registration and
(ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Warrant Shares,
for the same period as the delay in registering such other
securities.
3. EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses shall be borne by the holders of the securities so registered
(including the Company, to the extent securities are offered for its account)
pro rata on the basis of the gross sales proceeds received by them in the
offering.
4. REGISTRATION PROCEDURES. In the case of any registration
effected by the Company pursuant to this Agreement, the Company will keep the
Fund advised in writing as to the
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initiation of each registration and as to the completion thereof.
At its expense, the Company will:
(a) except for offerings pursuant to Rule 415 or
successors thereto under the Securities Act, keep such registration
effective for a period of one hundred twenty (120) days or until the
Fund has completed the distribution described in the registration
statement relating thereto, whichever first occurs;
(b) furnish such number of prospectuses (including
preliminary prospectuses conforming to the requirements of the
Securities Act and rules and regulations thereunder) and other
documents incident thereto as the Fund from time to time may reasonably
request;
(c) to the extent requested, furnish to the
underwriter, in an underwritten offering, or to the Fund, in a
non-underwritten offering, (i) a signed opinion of the Company's
counsel, and (ii) "comfort" letters signed by the Company's independent
public accountants who have examined and reported on the Company's
financial statements included in the registration statement, to the
extent permitted by the American Institute of Certified Public
Accountants, covering the same matters with respect to the registration
statement (and prospectus included therein) and with respect to the
events subsequent to the date of the financial statements, as are
customarily covered in opinions of counsel and in accountants'
"comfort" letters delivered to the underwriters in underwritten public
offerings of securities; and
(d) notify the Fund, at any time when a prospectus
relating to Warrant Shares covered by a registration statement is
required to be delivered under the Securities Act, of the happening of
any event as a result of which the prospectus included in such
registration statement includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
circumstances then existing.
5. INDEMNIFICATION.
(a) BY THE COMPANY. The Company will indemnify the
Fund and its officers, directors, trustees, members and agents, and
each underwriter, if any, and each person who controls any underwriter
of the Warrant Shares, against all claims, expenses, losses, damages
and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material
fact contained in any preliminary or final prospectus, offering
circular or other document (including any related registration
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statement, notification or the like) incident to any registration,
qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
any violation (or alleged violation) by the Company of the Securities
Act, any state securities law or any rule or regulation thereunder
applicable to the Company or relating to action or inaction required of
the Company in connection with any such registration, qualification or
compliance, and will reimburse the Fund, each of its officers,
directors, trustees, members and agents, each such underwriter and each
person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating,
defending or settling (except as provided below) any such claim, loss,
damage, liability or action, except to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on (i) any
untrue statement or omission made in reliance on and in conformity with
written information furnished to the Company by the Fund or underwriter
and expressly for use therein or (ii) any failure of the Fund or an
underwriter to deliver timely a copy of a final prospectus; provided,
that the Company shall have no obligation to indemnify any underwriter
or controlling person thereof if (x) the person asserting the claim
with respect to which indemnification is sought acquired the securities
on which such claim is based from such underwriter, (y) the claim is
based on an alleged untrue statement or material omission made in
connection with such sale, and (z) the underwriter failed to send or
deliver to the claimant, at or prior to the time that written
confirmation of the sale was sent or delivered, a copy of a prospectus
(as same may have been amended or supplemented), if any then existed,
which corrected such alleged misstatement or omission.
(b) BY THE FUND. The Fund will indemnify the Company,
each of its directors, officers and agents and each underwriter, if
any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter
within the meaning of the Securities Act and the rules and regulations
thereunder, each Other Shareholder and each of their officers,
directors and partners, and each person controlling such Other
Shareholder, against all claims, expenses, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, preliminary or final
prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such Other Shareholders,
directors, officers,
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partners, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating,
defending or settling (except as provided below) any such claim, loss,
damage, liability or action, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by the
Fund expressly for use therein; provided, however, the obligations of
the Fund hereunder shall be limited to an amount equal to the proceeds
received by the Fund from the Warrant Shares sold in such registration;
provided further, that the Fund shall have no obligation to indemnify
any underwriter or controlling person thereof if (i) the person
asserting the claim with respect to which indemnification is sought
acquired the securities on which such claim is based from such
underwriter, (ii) the claim is based on an alleged untrue statement or
material omission made in connection with such sale and (iii) the
underwriter failed to send or deliver to the claimant, at or prior to
the time that written confirmation of the sale was sent or delivered, a
copy of a prospectus (as same may have been amended or supplemented),
if any then existed, which corrected such alleged misstatement or
omission.
(c) PROCEDURES. Each Indemnified Party shall give
notice to the Indemnifying Party promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel
for the Indemnifying Party, who shall conduct the defense of such claim
or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld),
and the Indemnified Party may participate in such defense at such
party's expense. The failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Section 5 except to the extent the omission
results in a failure of actual notice to the Indemnifying Party and
such Indemnifying Party is materially prejudiced or damaged in its
ability to defend such claim as a result of the failure to give notice.
No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. No Indemnified Party shall settle
any claim, action or proceeding with respect to which indemnification
is sought without the
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written consent of the Indemnifying Party. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as
an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) FROM OTHER SHAREHOLDERS. The Company agrees that,
to the extent that it shall grant to any Other Shareholders the right
to have the Company securities held by them included in any
registration of the Company's securities, or to require the Company to
register their securities, it shall require as a condition to such
grant that such Other Shareholders agree to indemnify the Company and
the Fund with respect to any registration of their securities on terms
substantially identical to that provided by the Fund hereunder.
6. INFORMATION FROM THE FUND. The Fund shall furnish to the
Company such information regarding the Fund, the Warrant Shares and the
distribution proposed by the Fund as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
7. RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit the
sale of the Warrant Shares to the public without registration, the Company
agrees to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities
Act, at all times from and after ten (10) days following the effective
date of the first registration statement under the Securities Act filed
by the Company for an offering of its securities to the public; and
(b) file with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements.
(c) furnish the Fund upon request (i) a written
statement as to the status of its compliance during the previous 12
months with the reporting requirements of Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 and (ii) copies of the most
recent annual report on Form 10-K and quarterly report on Form 10-Q and
such other documents and reports filed by the Company as the Fund may
request for the purpose of enabling it to utilize available rules or
regulation permitting the sale, disposition or transfer of the Shares
without registration under applicable securities laws.
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8. LIMITATIONS ON SUBSEQUENT RIGHTS. From and after the date
hereof, the Company shall not, without the prior written consent of the Fund,
grant to any other person any demand or piggyback registration right if (a) such
right would give the holder thereof a preferential right, when compared to the
rights of the Fund hereunder, to have the Company securities included in a
registration statement or (b) compliance therewith would conflict with the
provisions hereof.
9. "MARKET STAND-OFF" AGREEMENT. The Fund agrees, if requested
by the Company and an underwriter of Common Stock (or other securities) of the
Company, not to sell or otherwise transfer or dispose of any Warrant Shares (or
other securities) of the Company held by it during the ninety (90) day period
following the effective date of the registration statement for the Public
Offering, or such longer period (not to exceed 270 days from the effective date)
to which holders of not less than 2/3 of the shares of the Company Common Stock
outstanding immediately prior to such effective date (including but not limited
to all directors and executive officers of the Company, or any subsidiaries and
all holders of 5% or more of the shares outstanding prior to the Public
Offering) have agreed.
10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed,
and the rights and liabilities of the parties hereto determined in all
respects, under by the laws of the State of Michigan, without regard to
choice of law principals which may require application of the laws of
any other jurisdiction.
(b) REMEDIES. Any person having rights under any
provision of this Agreement will be entitled to enforce such rights
specifically, to recover damages caused by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by
law.
(c) AMENDMENTS AND WAIVERS. Except as otherwise
provided herein, the provisions of this Agreement may be amended only
by written agreement signed by the party against whom enforcement
thereof is sought. Absent such written agreement, the Company may take
any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the
written consent or waiver of the Fund.
(d) SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Agreement by or on behalf of any of the
parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto. The
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Company may not assign its rights or obligations hereunder without the
prior written consent of the Fund.
(e) NOTICES. Except as otherwise provided herein, all
notices, demands and requests that any party is required or elects to
give to the other shall be in writing, or by a telecommunications
device capable of creating a written record, and any such notice shall
become effective (a) upon personal delivery thereof, including, but not
limited to, delivery by overnight mail and courier service, (b) Three
(3) calendar days after it shall have been mailed by United States
mail, first class, certified or registered, with postage prepaid, or
(c) in the case of notice by such a telecommunications device, when
properly transmitted, in each case addressed to the party to be
notified as follows:
IF TO FUND: Board of Trustees of the Policemen
and Firemen Retirement System of
the City of Detroit
000 Xxxx-Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxx, Assistant
Administrator Supervisor
Telecopy No.: (000) 000-0000
WITH A COPY TO: Couzens, Lansky, Fealk, Ellis,
Xxxxxx & Xxxxx, P.C.
00000 Xxxx 00 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
WITH A COPY TO: Xxxxxx Xxxxx, Esq.
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
WITH A COPY TO
LENDER'S AUTHORIZED
AGENT: Xxxxxx & Xxxxx, L.L.P.
00000 Xxxxxxxxxxxx Xxxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxx Xxxxx
Telecopy No.: (000) 000-0000
IF TO COMPANY: MCA Financial Corp.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Chairman
Telecopy No.: (000) 000-0000
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WITH A COPY TO: Butzel Long
000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
or to such other address as each party may designate for itself by
like notice.
(f) ENTIRE AGREEMENT. This Agreement, together with
the Warrant and Warrant Put Agreement represent the entire agreement of
the parties hereto with respect to the subject matter hereof, and
supersedes all prior oral or written agreements, negotiations,
understandings or arrangements related to the subject matter hereof.
(g) CAPTIONS. The captions contained in this
Agreement are for convenience only, are without substantive meaning and
should not be construed to modify, enlarge, or restrict any provision.
(h) COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all
of which together shall constitute one instrument.
(SIGNATURES CONTINUED ON NEXT PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written.
MCA FINANCIAL CORP.
a Michigan corporation
By:________________________________
Its:____________________________
THE BOARD OF TRUSTEES OF THE
POLICEMEN AND FIREMEN RETIREMENT
SYSTEM OF THE CITY OF DETROIT
By:________________________________
Its:____________________________
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By:________________________________
Its:____________________________
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