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Exhibit 2.2
LOCKUP AGREEMENT
THIS LOCKUP AGREEMENT (this "Agreement") is executed effective as of
July 2, 1999 by DMR Financial Services, Inc., a Michigan corporation
("Securityholder"), in favor of Xxxxxxx Financial Services Corporation, a
Michigan corporation ("Xxxxxxx"). All capitalized terms used, but not defined,
in this Agreement have the same meanings as in the Reorganization Agreement
(defined below).
WHEREAS, Xxxxxxx, Security holder, Detroit Mortgage and Realty Company,
a Michigan corporation ("DMR"), and Xxxxxxx & Xxxxxxx Mortgage Associates, Inc.,
a Michigan corporation, are parties to a Reorganization Agreement, dated June
30, 1999 (as the same may have been or may be amended or supplemented, the
"Reorganization Agreement"); and
WHEREAS, pursuant to the Reorganization Agreement, Xxxxxxx will issue
to Securityholder, as the consideration to be paid under the Reorganization
Agreement, shares of Xxxxxxx'x common stock, without par value (the "Shares");
and
WHEREAS, Xxxxxxx has required that Securityholder enter into this
Agreement as a condition to the issuances of shares of Xxxxxxx'x common stock to
Securityholder.
NOW, THEREFORE, in consideration of the foregoing and the consideration
to be given to Securityholder under the Reorganization Agreement, Securityholder
hereby agrees as follows, for the benefit of Xxxxxxx and its successors and
assigns:
1. Agreement Not to Sell. Except in connection with transfers pursuant
to Sections 2 or 3 of the Shareholders Agreement dated as of July 2, 1999 by and
among Xxxxxxx, Securityholder, DMR and the persons identified as
"Shareholders/Directors" on Schedule I thereto (the "Shareholders Agreement"),
Securityholder shall not, directly or indirectly, sell, offer to sell, solicit
an offer to buy, contract to sell (including, without limitation, any short
sale), grant any option to purchase or right to acquire, acquire any option to
dispose, or otherwise transfer or dispose of, or pledge, xxxxx x xxxx on or
otherwise encumber (all together, a "Transfer"), all or any part of the Shares
for a period beginning on the Closing Date and ending four (4) years and one (1)
day after the Closing Date, if an Affiliate (defined in paragraph 5 below), or
ending eighteen (18) months and one (1) day after the Closing Date, if not an
Affiliate, subject to the provisions set forth in paragraphs 2, 3 and 4 below.
2. Staggered Release of Shares from Lockup Provisions. Notwithstanding
paragraph 1 above, Securityholder, if an Affiliate, shall be permitted to
Transfer the Shares in the following amounts and on the following dates, subject
to the provisions of the Shareholders Agreement:
Beginning two (2) years and one (1) day up to 25% of the Shares then
after the Closing Date owned, beneficially or of
record, by Securityholder
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Beginning three (3) years and one up to 50% of the Shares then
(1) day after the Closing Date owned, beneficially or of
record, by Securityholder
Beginning four (4) years and up to 100% of the Shares then
one (1) day after the Closing Date owned, beneficially or of
record, by Securityholder
3. Release of Shares from Lockup Provisions on the Occurrence of
Certain Events.
(a) Notwithstanding paragraph 1 above, Securityholder shall no
longer be subject to the provisions of paragraph 1 above on the
occurrence of a Change In Control (defined below). For purposes of this
Agreement, the term "Change In Control" means that there has been a
change, in any single transaction, in the beneficial ownership of more
than fifty percent (50%) of the voting securities of Xxxxxxx, whether
by purchase and sale, exchange, conversion, merger or other transfer;
provided, however, that for the purpose of determining whether, with
respect to any single transaction, a Change In Control has occurred,
the beneficial ownership of any Shares which are subject to this Lockup
Agreement shall be deemed not to have changed by virtue of such
transaction.
(b) Notwithstanding paragraph 1 above, if, at any time, the
number of shares of Xxxxxxx'x common stock then owned, beneficially or
of record, by those persons who were members of the Board of Directors
of Xxxxxxx on January 8, 1999 (the "Obligated Persons"), collectively,
is equal to or less than eighty percent (80%) of the number of shares
of Xxxxxxx'x common stock owned, beneficially or of record, by them,
collectively, as of the Closing Date, then Securityholder shall be
permitted to Transfer up to ten percent (10%) of the number of the
Shares then owned, beneficially or of record, by Securityholder;
provided, however, that Shares previously Transferred in accordance
with paragraph 2 above shall be counted toward such ten percent (10%)
limit. Thereafter, for each additional ten percent (10%) of the number
of shares of Xxxxxxx'x common stock which, at any time, the Obligated
Persons, collectively, cease to own, beneficially or of record, as
compared to the number of shares of Xxxxxxx'x common stock owned,
beneficially or of record, by them, collectively, as of the Closing
Date, Securityholder shall be permitted to Transfer up to an additional
ten percent (10%) of the Shares then owned, beneficially or of record,
by Securityholder; provided, however, that Shares previously
Transferred in accordance with paragraph 2 above shall be counted
toward such additional ten percent (10%). For example, if, at some
future time, the Obligated Persons own, collectively, fifty-nine
percent (59%) of the number of shares of Xxxxxxx'x common stock owned
by them, collectively, as of the Closing Date, Securityholder shall be
permitted to Transfer up to a total of thirty percent (30%) of the
number of the Shares then owned by Securityholder, including all
Transfers previously made pursuant to paragraph 1 above or either of
the first two sentences of this paragraph 3(b). All Transfers pursuant
to this paragraph 3(b) shall be subject to the provisions of the
Shareholders Agreement.
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4. Exempt Transfers. Notwithstanding paragraph 1 above,
Securityholder may Transfer all or any part of the Shares, so long as such
Transfer is an Exempt Transfer (defined below). For purposes of this Agreement,
an "Exempt Transfer" is: (a) a Transfer to Xxxxxxx, DMR or the shareholders of
DMR pursuant to and in accordance with Section 15.7 of the Reorganization
Agreement; (b) a Transfer entirely between or among any of the Shareholders (as
defined in the Shareholders Agreement), provided, however, that any such
Transfer shall be subject to, and must be effected in accordance with, the terms
and conditions of Section 15.7 of the Reorganization Agreement; (c) assuming
that the Transfer to the shareholders of DMR contemplated in Section 15.7 of the
Reorganization Agreement has been effected, a Transfer by will or intestate
succession to a Shareholder's executors, administrators, testamentary trustees,
legatees or beneficiaries; (d) assuming that the Transfer to the shareholders of
DMR contemplated in Section 15.7 of the Reorganization Agreement has been
effected, a Transfer to a Shareholder's immediate family members or to a
Michigan revocable inter-vivos trust, of which a Shareholder is the grantor, or
another entity controlled by such Shareholder formed primarily for estate
planning purposes for the benefit of said Shareholder; (e) a Transfer to an
organization exempt from taxation under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"), so long as the transferor is not
a "disqualified person" (as defined in Section 4946(a) of the Code, assuming
that all references to "private foundation" or "foundation" in such Section
4846(a) are interpreted to mean the organization in question) with respect to
such organization (and/or his spouse, children, grandchildren, parents and/or
siblings) (the parties identified in (b), (c), (d) and (e), or any one of them
are hereinafter collectively referred to as "Permitted Transferees"); or (f) a
Transfer in a public offering by Xxxxxxx pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), or in a
transaction not involving a public offering pursuant to Rule 144 promulgated
thereunder. The transferee in any Exempt Transfer shall take the Shares in
question subject to the terms of this Agreement. Finally, notwithstanding
paragraph 1 above, Securityholder shall be entitled to pledge the Shares to a
secured creditor pursuant to a bona fide loan transaction (but not in connection
with any short sale, hedge, collar or other transaction which is not a bona fide
loan), provided that the pledgee agrees, in writing, to be bound by the
restrictions and obligations set forth in this Agreement.
5. Definition of Affiliate. Detroit Mortgage and Realty Company
and DMR Financial Services, Inc. shall each be considered an "Affiliate" for
purposes of this Agreement. In addition, and assuming Detroit Mortgage and
Realty Company distributes the Shares to its shareholders pursuant to and in
accordance with the terms and conditions of the Reorganization Agreement, each
of the following persons shall be considered an "Affiliate" for purposes of this
Agreement: Xxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxx
Xxxxxx and those other persons listed on Schedule 15.7(b)-1 to the
Reorganization Agreement.
6. Compliance With Securities Laws. Any other provision of his
Agreement to the contrary notwithstanding, Securityholder shall not, directly or
indirectly, sell, offer to sell, solicit an offer to buy, contract to sell
(including without limitation, any short sale), grant any option to purchase or
right to acquire, acquire any option to dispose, or otherwise transfer or
dispose of, or pledge, xxxxx x xxxx on or otherwise encumber, all or any portion
of the Shares, unless such Shares are registered pursuant to an effective
registration statement under, or except in accordance with an exemption from,
all applicable federal and state securities laws. In addition, Securityholder
acknowledges that the Shares may be subject to Rule 145 promulgated under the
Act.
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7. Interpretation and Governing Laws. Paragraph headings are for
convenience only and are not to be deemed to be part of this instrument. Any
reference herein to a person in the singular or the plural or as him, her, it or
other like reference, shall also, where the context so requires, be deemed to
include the singular or the plural reference, or the masculine, feminine or
neuter reference, as the case may be. The laws of the State of Michigan (being
the state in which the closing of the transactions contemplated in the
Reorganization Agreement is to take place, and the state the laws of which have
been selected to govern the Reorganization Agreement) shall govern all questions
as to the validity of this power and the construction of its provisions, without
regard to its conflict of laws provisions. Photographic or other facsimile
reproductions of this executed document may be relied on by any person to the
same extent as though the copy were an original. This Agreement may not be
amended unless such amendment is in writing and acknowledged in writing by
Xxxxxxx. Any waiver of any provision of this Agreement must be in writing, and
any such waiver in any one circumstance shall not operate as a waiver in any
subsequent or similar circumstance.
IN WITNESS WHEREOF, Securityholder has executed this Lockup Agreement
effective as of July 2, 1999.
"SECURITYHOLDER":
DMR FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Its: President and CEO
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STATE OF )
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COUNTY OF )
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On this ______ day of ___________, 1999, before me, a Notary Public,
personally appeared _____________, the _____________ of the "Securityholder"
identified above, who executed the above Lockup Agreement for and on behalf of
such corporation.
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Notary Public,
County,
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My commission expires:
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