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EXHIBIT 4.2
AMENDMENT TO MERGER AGREEMENT, SHAREHOLDERS AGREEMENT AND
EMPLOYMENT AGREEMENTS
THIS AMENDMENT TO MERGER AGREEMENT, SHAREHOLDERS AGREEMENT AND
EMPLOYMENT AGREEMENTS (the "Amendment") is made and entered into by and between
XXXXXXX FINANCIAL SERVICES CORPORATION, a Michigan corporation (the "Company"),
the undersigned persons (collectively, the "Shareholders"), Bloomfield
Acceptance Company, L.L.C., a Michigan limited liability company ("BAC") and
Bloomfield Servicing Company, L.L.C., a Michigan limited liability company
("BSC") as of February 21, 1999.
RECITALS
A. The Company completed a merger (the "Merger") with BAC and BSC
pursuant to the terms of a merger agreement between and among the Company, BAC,
BSC, BAC Acquiring Corp., BSC Acquiring Corp. and the members of BAC and BSC
dated February 17, 1998 (the "Merger Agreement").
B. In connection with the Merger, the former members of BAC and BSC who
received the Company's Common Stock in the Merger (the "Members") and the
Company's Board of Directors at that time entered into a Shareholders Agreement
which provides for certain rights, privileges and restrictions applicable to the
Company's Common Stock (the "Shareholders Agreement").
C. BAC has entered into employment agreements with Xxxxxx Xxxxxxxxxx,
Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxx, dated as of March 4, 1998, which contain
covenants not to compete (the "Employment Agreements").
D. As part of the Shareholders Agreement, the Shareholders agreed to
take such actions as are necessary to nominate and elect Xxxxxx X. Xxxxx,
Xxxxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx to the Board of Directors of the Company,
to vote to reelect Xx. Xxxxx for the term of the Shareholders Agreement and to
accomplish the elections of other director-nominees endorsed by the Board of
Directors from time to time.
E. The Company and the Shareholders desire to amend the Shareholders
Agreement to delete any and all agreements with respect to voting.
F. The Company, the Shareholders, BSC and BAC desire to amend certain
provisions of the Shareholders Agreement, the Merger Agreement and the
Employment Agreements in the event that neither Xxxxxx X. Xxxxx nor Xxxxxxxxx X.
Xxxxx is a member of the Board of Directors of the Company, for reasons other
than voluntary resignation or death.
NOW, THEREFORE, for and in consideration of the foregoing Recitals and
other good and valuable consideration, the receipt and adequacy of which is
acknowledged, the parties agree as follows:
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1. AMENDMENT TO SHAREHOLDERS AGREEMENT. Sections 1.1 and 1.2 of the
Shareholders Agreement are hereby deleted in their entirety.
2. MODIFICATIONS TO MERGER AGREEMENT, SHAREHOLDERS AGREEMENT AND EMPLOYMENT
AGREEMENTS. In the event that neither Xxxxxx X. Xxxxx nor Xxxxxxxxx X. Xxxxx is
a member of the Board of Directors of the Company, for reasons other than
voluntary resignation or death, prior to March 4, 2000, the Company and the
Shareholders agree to the following:
(a) The two year period restricting transfers of the Company's
common stock reflected in the Merger Agreement and Shareholders Agreement
(originally scheduled to expire on March 4, 2000) shall then be immediately
terminated; provided, however, that proposed transfers of the shares will remain
subject to applicable federal and state securities laws.
(b) At the request of the Members, which may be made at any
time, the Company shall file a registration statement as more particularly set
forth in Section 3 of the Shareholders Agreement; provided, however, that the
ownership percentage and aggregate offering price limitations shall not apply to
this request.
(c) Subject to compliance with applicable securities laws, the
Members shall be free to sell shares of the Company's Common Stock in the open
market, provided however, that no Member may sell more than five percent (5%) of
the Company's then outstanding common stock to a single purchaser unless the
Board previously approves the sale in writing.
(d) The periods of the covenants not to compete contained in
the Employment Agreements which are in effect following termination of each
Employment Agreement shall be reduced by one-half (1/2).
Except as expressly set forth in this Amendment, the Merger Agreement,
the Shareholders Agreement and the Employment Agreements shall remain in full
force and effect as executed and are hereby ratified and confirmed. In the event
of any inconsistency or conflict between this Amendment and the Merger
Agreement, the Shareholders Agreement and the Employment Agreements, the
provisions of this Amendment shall govern and control.
This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Copies (facsimile, photostatic or otherwise) of
signatures to this Amendment shall be deemed to be originals and may be relied
on to the same extent as the originals.
This Amendment shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by themselves or by their respective representatives thereunto duly
authorized with respect to each agreement they were a party to, as of the day
and year first above written. The undersigned Shareholders execute this
Amendment with respect to all shares of capital stock of the Company currently
owned and hereafter acquired, to the extent provided in the Shareholders
Agreement.
Xxxxxxx Financial Services Corporation
By:
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Xxxxxx X. Xxxxx
Its: Chief Executive Officer
Bloomfield Acceptance Company, L.L.C.
By:
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Xxxxxx X. Xxxxx
Its: President
Bloomfield Servicing Company, L.L.C.
By:
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Xxxxxx X. Xxxxx
Its: President
"Shareholders"
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Xxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxx
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Amendment to Merger Agreement,
Shareholders Agreement and Employment Agreements
signatures, continued
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Xxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
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Xxxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxx
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