1
EXHIBIT 10.8
ROCK FINANCIAL CORPORATION
SHAREHOLDERS AGREEMENT
THIS ROCK FINANCIAL CORPORATION SHAREHOLDERS AGREEMENT (the
"Agreement") is made as of April __, 1998, among Xxxx Xxxxxxx, Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxx Xxxxxx and Xxxx Xxxxxxxx (individually a "Shareholder", and
collectively, the "Shareholders"), Xxxxxx Xxxxxxx and Rock Financial
Corporation, a Michigan corporation (the "Company").
R E C I T A L S
A. Xxxxxx Xxxxxxx, Xxxx Xxxxxxx and Xxxxxxx Xxxxx are the beneficial
owners and holders of record of an aggregate of 10,000,000 Common Shares, $0.01
par value per share, of the Company. The Company's Common Shares outstanding
from time to time are referred to in this Agreement as the "Shares".
B. Each of Xxxxxx Xxxxxxx'x, Xxxx Xxxxxxx'x and Xxxxxxx Xxxxx'x current
individual ownership of Shares (after giving effect to the initial public
offering of the Company's Common Shares (the "IPO")) is as follows:
Common Shares
$0.01 Par Value Owned
---------------------
Xxxxxx X. Xxxxxxx 7,057,101
Xxxx Xxxxxxx 2,077,298
Xxxxxxx Xxxxx 865,601
-----------
10,000,000
===========
C. Xxxxxx Xxxxx, Xxxx Xxxxxx and Xxxx Xxxxxxxx are the holders of
options to purchase an aggregate of 1,660,684 Common Shares, $0.01 par value per
share, of the Company. Each of Xxxxxx Xxxxx'x, Xxxx Xxxxxx'x and Xxxx Xxxxxxxx'x
current individual ownership of options to purchase Common Shares (after giving
effect to the initial public offering of the Company's Common Shares (the
"IPO")) is as follows:
Options to Purchase
Common Shares
$0.01 Par Value Owned
---------------------
Xxxxxx Xxxxx 1,079,454
Xxxx Xxxxxx 290,615
Xxxx Xxxxxxxx 290,615
-----------
1,660,684
===========
2
D. The Shareholders, Xxxxxx Xxxxxxx and the Company desire to provide
for continuity in, and harmonious management of, the affairs of the Company by
providing certain restrictions on the voting rights of some of the Shareholders.
THEREFORE, the Shareholders, Xxxxxx Xxxxxxx and the Company agree as
follows:
1 Voting. From the date of this Agreement until the termination of this
Agreement pursuant to Section 4, each Shareholder and "Transferee" (as defined
below) shall vote all of his, her or its Shares and any other voting shares of
the Company's stock owned by such Shareholder or Transferee, upon any matter
submitted to the shareholders of the Company at any annual or special meeting of
the shareholders of the Company, or by written consent, as directed by Xxxxxx
Xxxxxxx. The voting rights set forth in this Section 1 shall be irrevocable
until the termination of this Agreement pursuant to Section 4. For purposes of
this Agreement, "Transferee" means any person or entity to whom or to which any
Shares are transferred by any Shareholder, other than (i) in a public offering
registered under the Securities Act of 1933, as amended (the "Act"), or (ii) in
a transaction complying with Rule 144 under the Act.
2 All Shares Held or Acquired By a Shareholder Are Subject to Agreement.
Any shares of the stock of the Company sold or transferred to, or otherwise
acquired by, any of the Shareholders or any Transferee at any time shall be,
become and remain subject to all the provisions of this Agreement in the same
manner and to the same extent as though owned by such Shareholder at the date of
the execution of this Agreement.
3 Endorsement on Stock Certificates. Each certificate representing Shares
now or later held by the Shareholders and each certificate representing Shares
now or later held by a Transferee during the term of this Agreement, except as
otherwise provided in this Agreement, shall be endorsed with a legend in
substantially the following form:
"The securities represented by this certificate are subject to the
terms of the Rock Financial Corporation Shareholders Agreement, dated
as of April __, 1998, among Rock Financial Corporation, a Michigan
corporation, Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxx Xxxxxx and Xxxx Xxxxxxxx (the "Agreement"). The Agreement imposes
restrictions on the voting of the common shares represented by this
certificate. Except as described in the Agreement, any person accepting
an interest in these securities, by accepting such interest, will be
deemed to agree to, and become bound by, all of the provisions of the
Agreement. A copy of the Agreement is on file and is available for
examination at the principal office of Rock Financial Corporation."
4 Termination. This Agreement shall terminate upon the occurrence of
any of the following events:
4.1 Dissolution of the Company; or
-2-
3
4.2 Final, and unappealed from, adjudication of bankruptcy of the
Company; or
4.3 Joint written agreement of the Company, Xxxxxx Xxxxxxx and the
Shareholders; or
4.4 Ten years after the date of this Agreement.
Upon the termination of this Agreement, each Shareholder and each Transferee
shall surrender to the Company the certificate or certificates for his Shares,
and the Company or its transfer agent shall issue to him, her or it in lieu of
such certificate or certificates a new certificate for an equal number of Shares
without the endorsement set forth in Section 3. The indemnities and remedies
contained in this Agreement shall survive and remain in full force and effect
after the termination of this Agreement.
5 Injunctive Relief. The terms, covenants and obligations of this
Agreement relate to special, unique and extraordinary matters, and a violation
of any of the terms, covenants and obligations of this Agreement will cause the
Company, Xxxxxx Xxxxxxx and the Shareholders irreparable injury in an amount
which would be difficult, if not impossible, to estimate or determine and for
which adequate compensation could not be fashioned. Therefore, the Company,
Xxxxxx Xxxxxxx and the other Shareholders will be entitled, jointly and
severally, to an injunction, restraining order or other equitable relief as a
matter of course from any court of competent jurisdiction, restraining each
Shareholder and any other person(s) the court may order from committing any
violation or threatened violation of the terms, covenants or obligations in this
Agreement. The Company's, Xxxxxx Xxxxxxx'x and the Shareholders' rights and
remedies under this Section 5 are cumulative and are in addition to any other
rights and remedies that the Company, Xxxxxx Xxxxxxx or any Shareholder may have
under this Agreement or any other agreement or at law or in equity.
6 Indemnification. Each Shareholder and his, her or its Transferees,
personal representatives, guardians, conservators, heirs, devisees, successors
and assigns (collectively, "Successors") indemnifies and holds harmless the
Company and Xxxxxx Xxxxxxx, their successors and assigns, any of the Company's
officers, agents, employees and directors and each of the other Shareholders
(collectively, the Indemnified Parties"):
6.1 against any and all damages, liabilities, claims, losses, taxes
and expenses (including reasonable attorneys' fees, court costs, interest and
expenses) incurred by any Indemnified Party arising out of or relating to any
breach by such Shareholder or by any of his Successors of any of the
representations, warranties, covenants, terms or agreements in this Agreement or
any document executed in connection with this Agreement;
6.2 against any and all damages, liabilities, claims, losses and
expenses, including reasonable attorneys' fees and court costs) incurred by any
Indemnified Party in connection with any action, suit or proceeding in which any
Indemnified Party either enforces or defends the validity of this Agreement or
any other document executed in connection with this Agreement against the
Shareholder or any of his Successors.
-3-
4
7 Employment. Nothing in this Agreement shall be construed to allow or
guarantee any Shareholder any rights to employment with the Company.
8 Notices. Any and all notices, designations, consents, offers,
acceptances or other communications provided for in this Agreement shall be
given in writing and shall be delivered in person, sent by certified or
registered mail, sent by facsimile or similar method of transmission or sent by
overnight courier, addressed in the case of the Company to its principal office
and in the case of a Shareholder or Xxxxxx Xxxxxxx to his address appearing on
the stock records of the Company or such other address as may be designated by
him.
9 Severability. It is the desire and intent of the parties to this
Agreement that the terms, provisions, conditions, covenants, representations,
warranties and remedies contained in this Agreement will be enforceable to the
fullest extent permitted by law. If any term, provision, condition, covenant,
representation, warranty or remedy of this Agreement or the application thereof
to any person or circumstance will, to any extent, be construed to be illegal,
invalid or unenforceable, in whole or part, then such term, provision,
condition, covenant, representation, warranty or remedy will be construed in a
manner so as to permit its enforceability under the applicable law to the
fullest extent permitted by such law. In any case, the remaining terms,
provisions, conditions, covenants, representations, warranties and remedies of
this Agreement or the application thereof to any person or circumstance, except
those which have been held illegal, invalid or unenforceable, will remain in
full force and effect.
10 Amendment. No change or modification of this Agreement shall be valid
unless it is in writing and signed by the Company, Xxxxxx Xxxxxxx and all of the
Shareholders. As soon as practicable after this Agreement has been amended,
copies of such amendment shall be furnished to Xxxxxx Xxxxxxx and each of the
Shareholders then parties to this Agreement.
11 Governing Law and Forum. The laws of the State of Michigan shall
govern this Agreement, its construction, and the determination of any rights,
duties or remedies of the parties arising out of or relating to this Agreement.
The parties acknowledge that the United States District Court for the Eastern
District of Michigan or the Michigan Circuit Court of the County of Oakland
shall have exclusive jurisdiction over any case or controversy arising out of or
relating to this Agreement and that all litigation arising out of or relating to
this Agreement shall be commenced in the United States District Court for the
Eastern District of Michigan or in the Oakland County (Michigan) Circuit Court.
Each Shareholder irrevocably consents to the jurisdiction of the United States
District Court for the Eastern District of Michigan and the Oakland County
(Michigan) Circuit Court in connection with all actions and proceedings arising
out of, or in any way related to this Agreement.
12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-4-
5
13 Interpretation. The headings contained in this Agreement are solely for
the purpose of reference, are not part of the agreement of the parties and shall
not in any way affect the meaning or interpretation of this Agreement. Wherever
in this Agreement, words, including pronouns, are used in the masculine, they
shall be read and construed in the feminine or neuter whenever they would so
apply, and wherever in this Agreement, words, including pronouns, are used in
the singular or plural, they shall be read and construed in the plural or
singular, respectively, wherever they would so apply.
14 Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties to this Agreement with respect to the subject
matter of this Agreement. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth in
this Agreement. This Agreement supersedes all prior discussions, agreements,
promises, representations, warranties, statements and understandings between the
parties with respect to such subject matter, including, without limitation, the
Rock Financial Corporation Shareholders Agreement, dated as of January 17, 1997,
among Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxxx and the Company (which
agreement shall no longer have any effect), and any such prior discussions,
agreements, promises, representations, warranties, statements and understandings
are merged into this Agreement.
15 No Waiver. No waiver of any Section or provision of this Agreement will
be valid unless in a writing signed by the party to be charged and only to the
extent set forth in that writing. Unless such a writing expressly provides
otherwise, no waiver of any breach of any agreement or provision contained in
this Agreement shall be deemed a waiver of any preceding or succeeding breach of
this Agreement or of any other agreement or provision contained in this
Agreement, and no such waiver shall constitute a course of conduct which may be
relied upon to justify any subsequent breach of this Agreement. No extension of
time for the performance of any obligations or acts shall be deemed an extension
of time for the performance of any other obligations or acts.
16 Binding Effect; Assignment. This Agreement, and the rights and duties
under it, shall be binding upon and inure to the benefit of the parties to this
Agreement and (i) the Company's successors and assigns, (ii) the beneficiaries,
personal representatives, guardians, conservators, heirs, and devisees of Xxxxxx
Xxxxxxx or any Shareholder, and (iii) any Transferee. This Agreement may not be
assigned by any party (other than Xxxxxx Xxxxxxx) without the prior written
consent of the other parties.
17 Subsequent Documents. The parties agree that they will, at any time,
duly execute and deliver to any party any additional documents and instruments
that such party may reasonably determine to be necessary in connection with the
transactions contemplated in this Agreement, and the failure of a party to
demand such documents or instruments on or before the date of this Agreement
shall not alleviate the obligation of any party to execute and deliver such
documents or instruments at any time, upon the written demand of a party.
-5-
6
18 Counsel. All parties acknowledge that they have had an opportunity to
obtain separate counsel before execution of this Agreement. This Agreement is
made voluntarily and without duress of any kind.
IN WITNESS WHEREOF, the Company, Xxxxxx Xxxxxxx and the Shareholders
have signed this Agreement as of the day and year set forth in the introductory
paragraph of this Agreement.
In the Presence of: ROCK FINANCIAL CORPORATION
By:
----------------------------- ------------------------------
Xxxxxx X. Xxxxxxx
Its: President
------------------------
----------------------------- ------------------------------
Xxxxxx Xxxxxxx, Shareholder
----------------------------- ------------------------------
Xxxx Xxxxxxx, Shareholder
----------------------------- ------------------------------
Xxxxxxx Xxxxx, Shareholder
----------------------------- ------------------------------
Xxxxxx Xxxxx, Shareholder
----------------------------- ------------------------------
Xxxx Xxxxxx, Shareholder
----------------------------- ------------------------------
Xxxx Xxxxxxxx, Shareholder
-6-
