1
EXHIBIT 10.33
DEMAND REGISTRATION RIGHTS AGREEMENT
BETWEEN
MCA FINANCIAL CORP.
AND
BOARD OF TRUSTEES OF THE
POLICEMEN & FIREMEN RETIREMENT SYSTEM
OF THE CITY OF DETROIT
2
Table of Contents
Page
----
1. Certain Definitions.............................................................................1
(a) "Additional Warrant Stock".............................................................1
(b) "Agreement"............................................................................1
(c) "Commission"...........................................................................1
(d) "Exchange Act".........................................................................1
(e) "Fund".................................................................................2
(f) "Indemnified Party"....................................................................2
(g) "Indemnifying Party"...................................................................2
(h) "MCAF".................................................................................2
(i) "Option"...............................................................................2
(j) "Option Stock".........................................................................2
(k) "Other Shareholders"...................................................................2
(l) "Public Offering"......................................................................2
(m) The terms "register", "registered" and "registration"..................................2
(n) "Registration Expenses"................................................................2
(o) "Securities Act".......................................................................2
(p) "Selling Expenses".....................................................................2
(q) "Shares"...............................................................................2
(r) "Stock"................................................................................3
(s) "Umbrella Agreement"...................................................................3
(t) "Warrant"..............................................................................3
(u) "Warrant Stock"........................................................................3
2. Requested Registration..........................................................................3
(a) Request for Registration...............................................................3
(b) Underwriting...........................................................................4
(c) Exchange Act Registration and Form S-3.................................................5
(d) Rule 144 Sales Without Restriction.....................................................5
(e) Withdrawal.............................................................................5
3. Expenses of Registration........................................................................5
4. Registration Procedures.........................................................................5
5. Indemnification.................................................................................7
(a) By MCAF................................................................................7
(b) By the Fund............................................................................7
(c) Procedures.............................................................................8
(d) From Other Shareholders................................................................9
6. Information From the Fund.......................................................................9
-i-
3
7. Rule 144 Reporting..............................................................................9
8. Transfer or Assignment of Registration Rights...................................................9
9. Limitations on Subsequent Rights...............................................................10
10. "Market Stand-Off" Agreement...................................................................10
11. Miscellaneous..................................................................................10
(a) Governing Law.........................................................................10
(b) Remedies..............................................................................10
(c) Amendments and Waivers................................................................10
(d) Successors and Assigns................................................................10
(e) Advance of Legal Fees.................................................................10
(f) Notices...............................................................................11
(g) Entire Agreement......................................................................12
(h) Captions..............................................................................13
(i) Counterparts..........................................................................13
-ii-
4
MCA FINANCIAL CORP.
DEMAND REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of March 6, 1998, between
MCA FINANCIAL CORP., a Michigan corporation ("MCAF"), and the BOARD OF TRUSTEES
OF THE POLICEMEN & FIREMEN RETIREMENT SYSTEM OF THE CITY OF DETROIT (the
"Fund").
The facts underlying this Agreement are as follows:
A. MCAF has issued to the Fund an option (the "Option") to
acquire MCAF common stock ("Option Stock") pursuant to a Credit Enhancement
Umbrella Agreement dated as of April 30, 1993, as amended and restated as of
June 30, 1997, and as further amended as of March 6, 1998 (the "Umbrella
Agreement").
B. MCAF and the Fund are parties to a Stock Purchase Agreement
dated July 18, 1996, as amended as of March 6, 1998, pursuant to which the Fund
acquired MCAF common stock and may in the future be issued additional MCAF
common stock as a consequence of anti-dilution protection (collectively, the
"Stock").
C. MCAF is issuing to the Fund on March 6, 1998, a warrant
(the "Warrant") convertible into MCAF common stock (the "Warrant Stock"), which
Warrant and a Warrant Put Agreement between MCAF and the Fund dated March 6,
1998 may in the future require MCAF to issue additional common stock as a
consequence of anti-dilution protection (the "Additional Warrant Stock").
D. The parties in connection with certain of the
above-referenced transactions and other related transactions have agreed to
enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
(a) "Additional Warrant Stock" shall have the
meaning set forth in the preamble.
(b) "Agreement" shall mean this MCA Financial
Corp. Demand Registration Rights Agreement.
(c) "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
(d) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as the same has been or shall be amended.
5
(e) "Fund" shall mean the Board of Trustees of
the Policemen & 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) "MCAF" shall mean MCA Financial Corp., a
Michigan corporation.
(i) "Option" shall have the meaning set forth in
the preamble.
(j) "Option Stock" shall have the meaning set
forth in the preamble.
(k) "Other Shareholders" shall mean,
collectively, holders (including officers and directors of MCAF or MCA Mortgage
Corporation or Mortgage Corporation of America) of MCAF common stock who are
entitled, by contract with MCAF, to have their common stock included in a
registration of MCAF securities.
(l) "Public Offering" shall have the meaning set
forth in the Umbrella Agreement.
(m) 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.
(n) "Registration Expenses" shall mean all
expenses incurred by MCAF in compliance with Sections 2 and 3, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for MCAF, blue sky fees and expenses, the fees and
disbursements of counsel to the Fund in connection with the registration of the
Shares and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of MCAF, which
shall be paid in any event by MCAF).
(o) "Securities Act" shall mean the Securities
Act of 1933, as the same has been or shall be amended.
(p) "Selling Expenses" shall mean all
underwriting discounts and selling commissions applicable to the sale of
securities registered.
(q) "Shares" shall mean (i) the Option Stock;
(ii) the Stock; (iii) the Warrant Stock; (iv) the Additional Warrant Stock;
(v) shares of stock issued with respect to or in exchange for or in replacement
of the securities included in clauses (i) through (iv); and (vi) shares
-2-
6
of stock issued in respect of the stock referred to in clauses (i) through (v)
as a result of a stock split, stock dividend or the like. Shares shall exclude
stock sold to the public pursuant to a registration statement under the
Securities Act or Rule 144 promulgated under the Securities Act.
(r) "Stock" shall have the meaning set forth in
the preamble.
(s) "Umbrella Agreement" shall have the meaning
set forth in the preamble.
(t) "Warrant" shall have the meaning set forth
in the preamble.
(u) "Warrant Stock" shall have the meaning set
forth in the preamble.
2. Requested Registration.
(a) Request for Registration. If MCAF shall
receive from the Fund, at any time subsequent to the nine month anniversary
of the effective date of the registration statement for the Public Offering, a
written request that MCAF effect any registration with respect to all or a part
of the Shares, MCAF will as soon as practicable, use its diligent best efforts
to effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualifications under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of the Shares; however, MCAF shall not be obligated to effect, or
to take any action to effect, any such registration pursuant to this Section 2:
(i) In any particular jurisdiction in
which MCAF would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance, unless MCAF is
already subject to service in such jurisdiction and except as may be required by
the Securities Act or applicable rules or regulations thereunder; or
(ii) After MCAF has effected one such
registration pursuant to this Section 2(a) and such registration has been
declared or ordered effective; or
(iii) If prior to the receipt by MCAF of
the request from the Fund, MCAF has given written notice to the Fund of
MCAF's intent to register in a proposed public offering MCAF Common Stock for
MCAF's own account under the Securities Act (other than a registration relating
solely to employee benefit plans), then, provided thereafter MCAF files the
registration statement with the Commission within 90 days after MCAF has given
notice to the Fund of its intent to register and provided the offering is
declared or becomes effective within 60 days after the initial filing of the
registration statement with the Commission, then either (A) if all Shares are
registered and sold in that public offering as a consequence of the Fund's
piggyback registration rights, then the Fund's rights under this Agreement shall
be extinguished, or (B) if all Shares are not registered and sold in that public
offering, the Fund may not make its request under this Section 2, prior to the
earlier of (1) one hundred fifty (150) days after the date MCAF sent out the
first notice
-3-
7
to the Fund of intent to register (provided the registration statement has not
become effective) or (2) six months after the effective date of the registration
statement. MCAF may not give any written notice of intent to register as
provided in this subparagraph (iii) prior to twelve months after it has
previously given any such notice; or
(iv) MCAF may delay filing a registration
statement for a period of not more than ninety (90) days after the date of
receipt of the request from the Fund if a majority of the Directors then
comprising MCAF's Board of Directors (including a majority of the independent
Directors) determine that compelling corporate requirements necessitate the
postponement.
Subject to the foregoing subparagraphs (i), (ii), (iii) and (iv), MCAF shall
file a registration statement covering the Shares so requested to be registered
as soon as practicable after receipt of the request of the Fund.
The registration statement filed pursuant to the
request of the Fund may, subject to the provisions of Section 2(b) below
and if the Fund so agrees in the exercise of its absolute discretion, include
MCAF Common Stock being sold by the Company for its own account and MCAF Common
Stock held by Other Shareholders.
(b) Underwriting. If the Fund intends to
distribute the Shares covered by its request by means of an underwriting, it
shall so advise MCAF as a part of its request made pursuant to Section 2(a).
The lead underwriter shall be chosen by the Fund, which underwriter shall be
acceptable to MCAF in the exercise of its reasonable judgment.
If MCAF wishes to include in the underwritten
registration requested by the Fund MCAF Common Stock to be sold for the account
of MCAF and if the Fund has consented to such inclusion, MCAF shall notify
the Fund in writing within thirty (30) days after MCAF has received the Fund's
initial registration request of the number of shares MCAF wishes to include in
the registration. If any Other Shareholders request inclusion of their MCAF
Common Stock in the underwritten offering in a written notice received by the
Fund within thirty (30) days after MCAF has received the initial registration
request from the Fund and if the Fund has consented to such inclusion, MCAF
shall, on behalf of the Fund, offer to include the securities of Other
Shareholders in the underwriting and shall condition such offer on their
acceptance of the further applicable provisions of this Agreement. MCAF shall
(together with the Fund and Other Shareholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Fund and reasonably acceptable to MCAF. Notwithstanding any
other provision of this Section 2, if the underwriter advises the Fund in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the securities of MCAF held by Other Shareholders shall be
excluded from such registration to the extent so required by such limitation in
proportion, as nearly as practicable to the respective amounts of securities
which each such Other Shareholder has a contractual right to be included; and,
if a limitation of the number of shares is still required, the number of shares
of MCAF Common Stock which MCAF has requested to be included in the registration
and underwriting shall be reduced or eliminated, as required. No securities
excluded
-4-
8
from the underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. If any Other Shareholder who has requested
inclusion in such registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
MCAF, the underwriter and the Fund. The securities so withdrawn shall also be
withdrawn from registration.
If the Shares being registered pursuant to this
Section 2 are not to be distributed by means of an underwriting, then the Fund
will, to the extent required by law, conduct the offering of the Shares in
accordance with applicable law.
(c) Exchange Act Registration and Form S-3. At
the time MCAF initially registers its Common Stock under the Securities
Act, MCAF shall within thirty days of the effectiveness of such registration
register its Common Stock under Section 12 of the Exchange Act and use its best
efforts to maintain that Exchange Act registration. After MCAF has qualified for
the use of Form S-3, then (i) MCAF shall use Form S-3 for any registration
requested by the Fund pursuant to Section 2(a); and (ii) paragraph (ii) of
Section 2(a) shall not be applicable.
(d) Rule 144 Sales Without Restriction. If MCAF
delivers to the Fund within twenty (20) days after the initial request of
the Fund for registration pursuant to Section 2(a) an opinion (reasonably
acceptable to the Fund and its counsel) of outside counsel qualified in Federal
securities law issues that all Shares can be sold or disposed of in a single
public transaction without registration under the Securities Act and that the
resale of such securities to any purchaser does not require registration under
the Securities Act and if MCAF agrees to remove all restrictive legends on the
certificates evidencing the Shares, the Fund shall not be entitled to the
registration right set forth in Section 2(a). MCAF agrees to indemnify the Fund
against and to hold it harmless from all damages, losses and liabilities
(including liability for rescission), costs and expenses (including reasonable
attorneys' fees) based upon or arising out of the failure to comply with Section
5 of the Securities Act as a consequence of the Fund proceeding in accordance
with such outside counsel's opinion.
(e) Withdrawal. The Fund may withdraw a
registration request prior to the effective date of the registration
statement if a material adverse change has occurred in the condition, business
or prospects of MCAF and its subsidiaries from that known to the Fund at the
time of its initial request pursuant to Section 2(a).
3. Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Agreement shall be borne by MCAF, and all Selling Expenses
shall be borne by the holders of the securities so registered (including the
Fund, Other Shareholders and MCAF, to the extent securities are offered for its
account) pro rata on the basis of the gross sales proceeds received by each in
the offering.
4. Registration Procedures. In the case of any
registration effected by MCAF pursuant to this Agreement, MCAF will keep
the Fund advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense, MCAF will:
-5-
9
(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 MCAF's counsel, and (ii)
"comfort" letters signed by MCAF's independent public accountants who have
examined and reported on MCAF'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;
(d) notify the Fund, at any time when a
prospectus relating to 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;
(e) in connection with any underwritten
offering, enter into any underwriting and other agreements reasonably
necessary to effect the offer and sale of the Shares and any other securities
being registered, provided any such underwriting agreement contains customary
underwriting provisions and provided further that if the underwriter so requests
the underwriting agreement will contain customary contribution provisions;
(f) make available for inspection during
business hours on reasonable advance notice by the Fund, any underwriter
participating in any disposition pursuant to a registration statement, and any
attorney, accountant or other professional retained by the Fund, or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of MCAF (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause MCAF's officers, directors and employees to supply all
information reasonably requested by any such Inspector in connection with such
registration statement. Records which MCAF determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a material misstatement or omission in the
registration statement or (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction; and
-6-
10
(g) notify the Fund and the managing
underwriters, if any, promptly, and (if requested by any such person)
confirm such advice in writing, (i) when the registration statement, the
prospectus or any prospectus supplement or post-effective amendment, has been
filed, and, with respect to the registration statement or any post-effective
amendment, when the same has become effective, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a registration
statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose and MCAF shall
promptly use its best efforts to prevent the issuance of any stop order or to
obtain a withdrawal of such stop order should the order be issued, and (iii) of
the receipt by MCAF of any notification with respect to the suspension of the
qualification or exemption from qualification of a registration statement of any
of the Shares for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose.
5. Indemnification.
(a) By MCAF. MCAF 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 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 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 MCAF of the Securities Act, any state securities law or any rule or
regulation thereunder applicable to MCAF or relating to action or inaction
required of MCAF 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 MCAF 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 MCAF 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.
(b) By the Fund. The Fund will indemnify (i)
MCAF, each of its directors, officers and agents and each underwriter, if
any, of MCAF's securities covered by such a registration
-7-
11
statement, (ii) each person who controls MCAF or such underwriter within the
meaning of the Securities Act and the rules and regulations thereunder, and
(iii) each Other Shareholder (who is not the Indemnifying party) 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 such Indemnified Party 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 MCAF 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 securities 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
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.
-8-
12
(d) From Other Shareholders. MCAF agrees that,
to the extent that it shall grant to any Other Shareholders the right to
have MCAF securities held by them included in any registration of MCAF
securities, or to require MCAF to register their securities, it shall require as
a condition to such grant that such Other Shareholders agree to indemnify MCAF
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
MCAF such information regarding the Fund, the Shares and the distribution
proposed by the Fund as MCAF 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 Shares to the public without registration, MCAF 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 MCAF for an
offering of its securities to the public;
(b) file with the Commission in a timely manner
all reports and other documents required of MCAF under the Securities Act
and the Exchange Act at any time after it has become subject to such reporting
requirements; and
(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 MCAF 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.
8. Transfer or Assignment of Registration Rights. The
right to cause MCAF to register Shares granted under Section 2 and the
other rights granted the Fund hereunder may be transferred or assigned by the
Fund to one or more transferees or assignees of the Shares, provided that MCAF
is given written notice by the Fund at the time of or within a reasonable time
after said transfer or assignment, stating the name and address of each
transferee or assignee and identifying the number of Shares with respect to
which such registration rights are being transferred or assigned, and provided
further that the transferee or assignee of such rights assumes the obligations
of the Fund under this Agreement. Notwithstanding the foregoing, MCAF shall have
no obligation to recognize any assignment of Shares by the Fund, nor to cause
Shares to be transferred on its books or records, unless such transfer is made
in accordance with the registration or qualification requirements of the
Securities Act and all applicable blue sky or other state securities laws or
-9-
13
pursuant to available exemptions therefrom (as evidenced by an opinion of
counsel satisfactory in form and substance to counsel for MCAF).
9. Limitations on Subsequent Rights. From and after the
date hereof, MCAF 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 MCAF securities included in a registration
statement, or (b) compliance therewith would conflict with the provisions
hereof. MCAF represents and warrants to the Fund that it has not prior to the
date of this Agreement granted or agreed to grant to any person any rights which
conflict with the provisions of this Agreement or MCAF's obligations hereunder.
10. "Market Stand-Off" Agreement. The Fund agrees, if
requested by MCAF and an underwriter of common stock (or other securities) of
MCAF, not to sell or otherwise transfer or dispose of any Shares (or other
securities) of MCAF 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 MCAF common stock outstanding immediately
prior to such effective date (including but not limited to all directors and
executive officers of MCAF, MCA or FAMA and all holders of 5% or more of the
shares outstanding prior to the Public Offering) have agreed.
11. Miscellaneous.
(a) Governing Law. This Agreement shall be
governed, and the rights and liabilities of the parties hereto determined
in all respects, by the internal laws of the State of Michigan without reference
to choice of law provisions.
(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, MCAF may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if MCAF 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. MCAF may not assign its rights or obligations hereunder
without the prior written consent of the Fund.
(e) Advance of Legal Fees. If the Fund was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, administrative or
investigative (including but not limited to any action by or in the right of
MCAF)
-10-
14
with respect to the recovery of any profit or alleged profit from any purchases
and sales of MCAF securities (which term includes the Option, the Option Stock,
the Stock, the Warrant, the Warrants Stock and the Additional Warrant Stock and
rights and obligations related thereto in agreements between MCAF and the Fund)
which can be matched under Section 16(b) of the Exchange Act and the rules and
regulations promulgated thereunder, MCAF shall advance to the Fund, if requested
by the Fund, expenses (including attorneys' fees) incurred by the Fund in
defending any such action, suit or proceeding, provided the Fund agrees in
writing to repay such amount advanced with interest if either it shall
ultimately be determined by a final, nonappealable court judgment that the Fund
must repay to MCAF any of such profit the Fund realized or if the Fund enters
into a settlement which requires the Fund to repay to MCAF any of such profit
the Fund realized.
(f) Notices. Except as otherwise provided
herein, all notices, demands and requests that any party is required or
elects to give to any other shall be in writing, or by a telecommunications
device capable or creating a written record, and any such notice shall become
effective (i) upon personal delivery thereof, including, but not limited to,
delivery by overnight mail and courier service, (ii) three (3) days after it
shall have been mailed by United States mail, first class, certified or
registered, return receipt requested, with postage prepaid, or (iii) 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 the Fund:
Board of Trustees of the Policemen & Firemen
Retirement System of the City of Detroit
▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Assistant
Administrative Supervisor
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
-11-
15
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Couzens, Lansky, Fealk, Ellis, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
If to MCAF:
MCA Financial Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇, President
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Butzel Long
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: 313-225-7080
or to such other address as each party may designate for itself by like notice.
(g) Entire Agreement. This Agreement represents
the entire agreement of the parties hereto and supersedes all prior oral or
written agreements, negotiations, understandings or arrangements related to
the subject matter hereof; however, nothing in this Agreement supersedes,
replace or amends the agreements of the parties with respect to piggyback
registration and related rights, except that, to the extent the Fund has
piggyback registration rights which would otherwise be applicable to the demand
registration filed pursuant to this Agreement, those piggyback rights shall not
be applicable to the demand registration filed pursuant to this Agreement and
instead shall be applicable to subsequent registrations.
-12-
16
(h) 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.
(i) 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
MCA FINANCIAL CORP.,
a Michigan corporation
By:____________________________________
Its:___________________________________
BOARD OF TRUSTEES OF THE
POLICEMEN & FIREMEN RETIREMENT
SYSTEM OF THE CITY OF DETROIT
By:____________________________________
Its:___________________________________
By:____________________________________
Its:___________________________________
-13-