PRE-OPENING FUNDS AGREEMENT
This
Pre-Opening Funds Agreement
(“Agreement”) is entered into as of the 28 day of July, 2004 by and among
Birmingham Bloomfield Bancorp, Inc., a corporation organized under the laws
of
the State of Michigan (“Company”), and each of the undersigned individuals
(each, an “Organizer”).
RECITALS
WHEREAS,
the
Organizers have the mutual intention and objective to organize a commercial
bank
(the “Proposed Bank”) and have established the Company to pay the Proposed
Bank’s organizational expenses and to enter into agreements in furtherance of
the organization of the Proposed Bank;
WHEREAS,
the
Organizers desire to take such steps and actions as may be necessary in the
furtherance of their mutual intentions and objectives, including, but not
limited to, the filing of regulatory applications (the “Applications”) with the
Federal Reserve, the Federal Deposit Insurance Corporation (“FDIC”), the Office
of the Comptroller of the Currency (“OCC”) and/or the Michigan
Office of Financial and Insurance Services
(“State”), as applicable (the “Regulators”); and
WHEREAS,
the
Organizers further desire by this Agreement to provide for the solicitation
of
funds to cover the organizational (pre-incorporation and pre-opening) expenses
of the Company and the Proposed Bank among the Organizers, to be expended
for
the purpose of paying expenses to be incurred in order to determine the
feasibility of the Proposed Bank, to prepare the Applications and otherwise
to
organize the Proposed Bank.
NOW,
THEREFORE,
in
consideration of the foregoing and the promises, covenants and conditions
hereinafter set forth, and the contribution of money provided for herein,
the
Organizers hereto agree as follows:
1. Payments
of Funds for Pre-Incorporation Expenses
.
Each
Organizer, by execution of a counterpart hereof, hereby agrees to contribute
funds in the amount of $30,000 (“Pre-Opening Funds”) for the purpose of funding
organizational expenses of the Company and the Proposed Bank. A payment of
$10,000 shall be made by such Organizer concurrently with the execution of
this
Agreement, and two (2) additional payments of $10,000 shall be due and payable
within five (5) business days after notice from the Co-Managers (as defined
below) that the payment is due. Pre-Opening Funds paid by check shall be
made
payable to “Birmingham Bloomfield Bancorp, Inc.”
2. Account,
Co-Managers, and Terms Under Which Pre-Opening Funds Shall Be
Held
.
All
Pre-Opening Funds shall be deposited in a deposit account (the “Account”)
established in the name of the Company at a federally-insured depository
institution domiciled or authorized to do business in Michigan and selected
by
the Co-Managers. No other funds shall be deposited in the Account. The
Co-Managers or the Organizers (including the Co-Managers), acting by a vote
of
at least two-thirds of their number, may transfer the Account to another
banking
organization domiciled or authorized to do business in Michigan.
Until
a
total of $50,000 has been received in good funds from five (5) Organizers,
no
disbursements shall be made from the Account. If for any reason a total of
$50,000 has not been received by the Co-Managers by the close of business
on
July 15, 2004, then Pre-Opening Funds on deposit as of that date shall be
returned to each Organizer who contributed such funds within three (3) business
days thereafter without interest. Pre-Opening Funds may be accepted from
a
proposed Organizer only by the Co-Managers. Funds accepted from an Organizer
shall not be returned to the Organizer whether upon his or her withdrawal
or
removal, except as expressly provided herein. Funds shall be returned to
an
Organizer who has withdrawn or been removed only after such payment has been
approved by at least two-thirds of the other Organizers, and if not so approved,
then the withdrawing or removed Organizer shall be entitled to the return
or
partial return of his or her funds only under the same terms and conditions
as
apply to the remaining Organizers. After the initial balance in the Account
reaches $50,000 (such that disbursements are permitted pursuant to this
Section), the balance in the Account may be reduced below $50,000.
Unless
and until changed by the vote of two-thirds of the Organizers, Xxx Xxxx and
Xxxxxx X’Xxxxxxx are hereby appointed to serve as Co-Managers of the Account
(the “Co-Managers”), and are authorized to receive, deposit and disburse all
funds to be collected or paid pursuant to the terms of this Agreement and
to
take such other actions as may be contemplated by this Agreement.
3. Terms
Under Which Pre-Opening Funds Shall Be Disbursed
.
Disbursements from the Account may be made only upon the order and signature
of
both Co-Managers, and only for purpose of paying organizational expenses
of the
Company or the Proposed Bank, including but not limited to (i) marketing
and
banking consulting fees, (ii) economic study fees, (iii) pre-opening consulting
fees to be paid to one or more proposed officers of the Proposed Bank, and
others (all as approved by a majority of the Organizers), (iv) accounting
and
legal fees, (v) application fees and expenses, and (vi) rent, lease and/or
option payments and security deposits; provided, however, that no disbursement
in excess of $5,000 (except reimbursement of out-of-pocket expenses) shall
be
made to any Organizer unless and until such payment or payments have been
approved in advance by at least a majority of the Organizers who are then
parties to this Agreement.
4. Additional
Organizers
.
Upon
the approval of the Co-Managers, additional Organizers may be added from
time to
time, provided that such Organizers ratify and agree to be bound by, and
comply
with the provisions, terms and conditions of, this Agreement. Each additional
Organizer shall execute a signature page to this Agreement (and such other
instrument as counsel to the Company shall require), and shall immediately
contribute funds in the same amount as has been contributed as of such date
by
each of the other Organizers.
5. Records
.
The
Co-Managers shall keep and maintain records containing:
(a) With
respect to each deposit to the Account:
(i) date
of
deposit,
(ii) amount
deposited, and
(iii) name
of
person from whom such money was accepted.
(b) With
respect to each withdrawal from the Account:
(i) date
of
withdrawal,
(ii) amount
of
money withdrawn,
(iii) name
of
person or entity to whom such money was paid,
(iv) description
of purpose of such payment, and
(v) any
invoice or billing relating to such payment.
(c) The
Co-Managers or, upon opening, the Proposed Bank, shall preserve the records
described above for a period of not less than four (4) years after such Account
is closed.
(d) The
Co-Managers shall, upon request, make the records described above available
for
inspection and copying by (i) the Regulators, (ii) any proposed director,
officer, or organizer of the Company or the Proposed Bank; (iii) any person
from
whom Pre-Opening Funds have been accepted, (iv) the Company, or (v) the Proposed
Bank, if and when organized.
6. Reports.
(a) On
or
before the 21st day of each calendar quarter, commencing with the calendar
quarter after Pre-Opening Funds are first accepted and continuing until the
Account is closed in accordance with this Agreement, the Co-Managers will
provide to each person from whom Pre-Opening Funds have been accepted a report
stating, with respect to the last calendar quarter:
| 1. |
Opening
balance of the Account.
|
| 2. |
Total
amount deposited in the Account during the calendar
quarter.
|
| 3. |
Itemized
schedule of deposits showing, with respect to each deposit, date
of
deposit, amount of money deposited, name of person from whom such
money
was accepted and aggregate total
amount.
|
| 4. |
Total
amount disbursed from the Account during the calendar
quarter.
|
| 5. |
An
itemized schedule of disbursements showing, with respect to each
person to
whom the amount disbursed, together with amounts previously disbursed
to
each person, is $500 or more: name of person, amount disbursed
to the
person, description of purpose of such disbursement and the aggregate
total amount disbursed to date to the
person.
|
| 6. |
Closing
balance of Account.
|
7. Circumstances
Under Which Pre-Opening Funds Shall Be Repaid
.
(a) The
Organizers understand and agree that the Pre-Opening Funds advanced by the
Organizers shall be reimbursed to the Organizers if, and only if, one of
the
following events occurs:
(i) The
Company receives the proceeds of a loan made to the Company to repay the
Pre-Opening Funds; or
(ii) The
Proposed Bank is issued a charter to transact commercial banking business
by the
OCC or the State, as applicable, the Proposed Bank receives approval from
the
FDIC of its application for deposit insurance and all subscription funds
held in
escrow for Proposed Bank stock have been released to the Proposed
Bank.
(b) The
Co-Managers shall cause the Company, after making all disbursements authorized
under the terms of this Agreement, to pay any and all balances in the Account,
on a pro rata basis, to the Organizers upon the occurrence of any of the
following events:
(i) an
application for authority to organize the Proposed Bank is not filed with
the
OCC or the State within six (6) months after Pre-Opening Funds are first
accepted by the Co-Managers, or
(ii) an
application for authority to organize the Proposed Bank filed with the OCC
or
the State within such time is denied by the OCC or the State and a reapplication
for authority to organize the Proposed Bank is not filed with the OCC or
the
State within 90 days after such denial.
(c) Each
Organizer acknowledges and agrees that there is no assurance that any of
the
conditions described in this Section will be met and that if the conditions
described above do not occur, such Organizer shall not be entitled to
reimbursement of any of the Pre-Opening Funds, except as expressly provided
herein. Such Organizer further waives any and all claims against any other
Organizers hereto, the Company, the Proposed Bank and their respective officers,
directors, shareholders, attorneys, agents and representatives for reimbursement
of his or her share of Pre-Opening Funds as a result of the failure to occur
of
any of the conditions described above.
8. Application;
Services
.
The
Co-Managers are hereby authorized and directed to execute and deliver written
agreements with attorneys, accountants, economists and banking/fundraising
consultants, relating to the various applications to be filed with the
Regulators in connection with the organization of the Proposed Bank, and
for
other services related to the organization of the Company or the Proposed
Bank.
The Co-Managers are hereby authorized and directed to pay, to the extent
of
funds made available by the Organizers as described herein, all amounts agreed
to in said agreements for all such services rendered. Notwithstanding the
foregoing, the preparation of the Applications shall not commence unless
and
until a total of $50,000 has been received from five (5)
Organizers.
9. Indemnification
of Co-Managers
.
The
Organizers hereto agree to indemnify and hold the Co-Managers harmless from
any
liability, obligation, claims or costs (including attorneys, accountants,
paralegal fees and expenses) incurred by them in their capacities as such
or in
the course of their performance of their duties as such, except liabilities
or
obligations arising from or out of willful misconduct or gross
negligence.
10. Removal
of Organizers. An
Organizer may be removed with or without cause upon the vote of two-thirds
of
the then-active Organizers.
11. Voluntary
Withdrawal.
An
Organizer may withdraw as an organizer of the Company or the Proposed Bank
by
giving written notice to the Co-Managers. Notwithstanding the foregoing,
the
withdrawal of an Organizer shall not affect in any manner any obligation
incurred by the Organizer pursuant to this Agreement or any other agreement
entered into by the Organizer.
12. Unauthorized
Acts
.
Notwithstanding anything contained herein to the contrary, no party hereto
shall
be authorized in any manner or form to perform any act or to render any
communication or information with regard to the organization of the Company
or
the Proposed Bank that is contrary to applicable federal and applicable state
law, including the rules, regulations and policies of the Federal Reserve,
OCC,
State and FDIC. In addition, each Organizer acknowledges the
following:
(a) that
the
Proposed Bank is not being organized for the sole purpose of immediately
selling
to or merging or consolidating with any other financial
institution;
(b) that
such
Organizer may not indicate, either orally or in writing, that he or she is
an
officer or director of the Proposed Bank or that the Proposed Bank is in
existence prior to receiving the consent of the Regulators, if required at
such
time;
(c) that
the
Proposed Bank, upon organization, will not refinance, either directly or
indirectly, any loan, advance, or credit extension made to any prospective
shareholder by any existing financial institution or other lender, if such
loan,
advance, or credit extension was originally made to the prospective shareholder
to obtain funds to purchase stock in the Proposed Bank;
(d) that
all
subscription funds for capital stock will be held in escrow subject to the
order
of the applicable Regulators and that these funds will be released only after
all conditions precedent to the commencement of operations at the Proposed
Bank
have been satisfied; and
(e) that
no
representations have been made by the Co-Managers, any of the Organizers,
any of
the other signatories hereto or attorneys, accountants or any other service
providers to the Company or the Proposed Bank guaranteeing or representing
that:
(a) a charter for the Proposed Bank will be issued and approved by the
Regulators; (b) approval of the Proposed Bank by the Regulators will occur
on or
before any specified date or approximate date, or that such approval will
be
received at all; (c) such Organizer will be approved by the Regulators as
an
organizing director of the Proposed Bank; (d) the Proposed Bank will be able
to
successfully sell any amount of its initial capital stock; (e) such Organizer
will be approved by the Regulators to purchase any specific number of shares
of
the capital stock of the Proposed Bank; (f) the Regulators will approve any
specific stock options or other benefit for such Organizer(s); (g) the Proposed
Bank will be located in any specific location or city; or (h) the Proposed
Bank
will open for business on or before any specific date or approximate
date.
13. Borrowings/Guarantees.
The
parties understand and agree that it may be necessary for the Company to
borrow
funds or otherwise secure lines of credit for the purpose of obtaining funds
to
pay pre-incorporation and pre-opening expenses of the Proposed Bank and that
lenders may require such financing arrangements to be evidenced by one or
more
notes co-signed or guaranteed by each of the undersigned on a pro rata basis,
based on the amount of Pre-Opening Funds contributed by such Organizer; provided
however, that if required by the lender and consented to by the Co-Managers,
the
guarantee of each respective Organizer may be increased to a percentage of
his
respective pro rata amount not greater than 115%. Except as provided above,
any
other agreement to borrow funds that requires the guarantee of an Organizer
shall require the unanimous written consent of all the Organizers who undertake
such guarantee. All funds obtained pursuant to this Section 13
shall be
maintained and disbursed by the Co-Managers
in conformity with the duties set forth in this Agreement.
14. Termination
.
The
Agreement shall terminate upon the occurrence of any of the following
events:
(a) by
mutual
written consent of a majority of the Organizers who are bound by the terms
hereof; or
(b) following
an event described in Section 7(a)
or
7(b)
upon the
reimbursement of funds due to Organizers or upon a determination by the
Co-Managers that no reimbursement shall be due.
15. Miscellaneous.
(a) Notices.
Any
notice required by this Agreement shall be given by telephone and confirmed
by
facsimile, express or certified mail to the parties at the addresses heretofore
furnished by each party hereto or such other address as a party may later
specify. With respect to notice confirmed by facsimile, notice shall be deemed
duly given when facsimile confirmation is received. With respect to notice
confirmed by express or certified mail, notice shall be deemed duly given
upon
the earlier of actual receipt of such confirmation by mail or three (3) business
days after deposit in the United States mail, postage prepaid.
(b) Complete
Agreement.
This
Agreement contains the entire understanding of the parties and supersedes
all
existing agreements and all other oral, written or other communications between
the parties concerning its subject matter. There are no agreements, arrangements
or undertakings, oral or written, between or among the parties hereto relating
to the subject matter of this Agreement that are not fully expressed
herein.
(c) Governing
Law.
This
Agreement shall be governed by the laws of Michigan without regard to principles
of conflicts of laws. Any dispute or controversy arising under, out of or
in
connection with this Agreement, shall be determined and settled by arbitration
in the City of Detroit, State of Michigan in accordance with the rules of
the
American Arbitration Association. Any decision rendered thereby shall be
non-appealable, final and binding on the parties and judgment may be entered
thereon.
(d) Assignment.
This
Agreement is personal to the parties hereto and may not be assigned, except
with
respect to the Company to a successor corporate entity, including the Proposed
Bank, once established.
(e) Amendment.
This
Agreement may be amended only by a writing signed by a majority of the
Organizers; provided however, that any action under this Agreement requiring
the
approval or consent of more than a majority may be amended only by a writing
signed by at least the same number of Organizers as would be required to
take
such action under the Agreement.
(f) Waiver.
Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant, or condition.
A
waiver of any provision of this Agreement must be made in writing, designated
as
a waiver, and signed by the party against who its enforcement is sought.
Any
waiver or relinquishment of such right or power at any one or more times
shall
not be deemed a waiver or relinquishment of such right or power at any other
time or times.
(g) Illegality,
Severability.
If any
provisions of this Agreement (or any portion thereof) shall be held to be
invalid, illegal or unenforceable, the validity, legality or enforceability
of
the remainder of this Agreement shall not in any way be affected or impaired
thereby.
(h) Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall be deemed an original, and all such counterparts shall
together constitute but one and the same instrument.
(i) Headings.
The
headings of sections in this Agreement are for convenience of reference only
and
are not intended to qualify the meaning of any of the language in this
Agreement.
(j) Relationship
of the Organizers.
This
Agreement shall not be deemed to create a partnership or joint venture among
the
Organizers or among the Company and the Organizers. Except with respect to
the
authorized acts of the Co-Managers, as expressly described in this Agreement,
no
Organizer shall be authorized or have the right to bind or obligate any other
Organizer to any debt, obligation or liability with any third party without
the
prior written consent of all of the other Organizers.
IN
WITNESS WHEREOF,
the
undersigned parties have executed this Agreement and agree to be bound by
the
terms hereof.
COMPANY:
BIRMINGHAM
BLOOMFIELD BANCORP, INC.
By:
/s/ Xxxxxx X. Xxxx
Name: Xxxxxx
X. Xxxx
Title:
President
ORGANIZERS
| ____________________ |
|
Name:
/S/ Xxxxxx X. Xxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxxxx X. Xxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxx X. Xxxxxxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxx X. Xxxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxx X. Xxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxx Xxxxxxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxxx X. Xxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxxxx X. Xxxxxxxx
|
| __________________ |
|
Name:
/S/ Xxxxx Xxxxxx
|
| _________________ |
|
Name:
/S/ Xxx Xxxxxx
|
| ________________ |
|
Name:
/S/ Xxxx X. Xxxx
|
| ________________ |
|
Name:
/S/ Xxx Xxxx
|
| __________________ |
|
Name:
/S/ D. Xxxxxxx Xxxxx
|
| __________________ |
|
Name:
/S/ Xxxxxxx Xxxx
|
| ___________________ |
|
Name:
/S/ Xxxxx Xxxxxx
|
| ___________________ |
|
Name:
/S/ Xxxxxxx X. Xxxxxx
|
| __________________ |
|
Name:
/S/ J. Xxxxxx Xxxxx
|
| ____________________ |
|
Name:
/S/ Xx. Xxxxxx Xxxxxx
|
| _____________________ |
|
Name:
/S/ Xxxxxx X. X’Xxxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxxxx X. Xxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxx Xxxxxx
|
| ____________________ |
|
Name:
/S/ Xxxxxxx X. Xxxxx
|
| _____________________ |
|
Name:
/S/ Xxxxxxx Xxxxxxxx, Xx.
|
| _____________________ |
|
Name:
/S/ Xxxxxx Xxxxxxxx
|
| ______________________ |
|
Name:
/S/ Xxxxx X. Xxxxxxxx
|
| _________________ |
|
Name:
/S/ Xxxx Xxxxx
|
| ___________________ |
|
Name:
/S/ Xxxxx X.
Xxxxxxxx
|
