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EXHIBIT 10.32
MCA FINANCIAL CORP.
PURCHASE 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. Purchase
Agreement.
(c) "Fund" shall mean the Board of Trustees of the Policemen &
Firemen Retirement System of the City of Detroit.
(d) "IPO" shall mean the first public offering of MCAF Common
Stock registered under the Securities Act, other than a registration relating
solely to employee benefit plans
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or a registration relating solely to a Rule 145 transaction. The IPO, if it so
qualifies, shall be the Public Offering, in which case the terms shall be
identical.
(e) "MCAF" shall mean MCA Financial Corp., a Michigan
corporation.
(f) "Option" shall have the meaning set forth in the preamble.
(g) "Option Stock" shall have the meaning set forth in the
preamble.
(h) "Public Offering" shall have the meaning set forth in the
Umbrella Agreement.
(i) "Securities Act" means the Securities Act of 1933, as
amended.
(j) "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); (vi) shares 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; (vii) the Warrant; and (viii) the Option. 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.
(k) "Stock" shall have the meaning set forth in the preamble.
(l) "Umbrella Agreement" shall have the meaning set forth in the
preamble.
(m) "Warrant" shall have the meaning set forth in the preamble.
(n) "Warrant Stock" shall have the meaning set forth in the
preamble.
2. MCAF Purchase Obligation. Notwithstanding any other obligations of
MCAF with respect to the purchase of MCAF equity securities (including rights to
acquire equity securities) from the Fund, if immediately following either (i)
the closing of the IPO or (ii) the closing of the Public Offering the Shares
(without double counting of the Warrant and the Option to the extent
unexrecised) represent five percent (5%) or more of the total shares of MCAF
Common Stock then outstanding (without counting as outstanding any rights to
acquire MCAF Common Stock or securities or debt convertible into Common Stock,
other than the Shares), then in each instance the Fund may require MCAF to
purchase from the Fund the minimum number of Shares required so that immediately
after such purchase the number of Shares (without double counting of the Warrant
and the Option to the extent unexercised) represents less than five percent (5%)
of the total shares of MCAF Common Stock outstanding (without counting as
outstanding any rights to acquire MCAF Common Stock or securities or debt
convertible into Common Stock, other than the Shares). The per share purchase
price for the Shares so purchased by MCAF from the Fund shall be equal to the
per share price at which shares of MCAF Common Stock were sold to the public in
the IPO or the
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Public Offering, as applicable; however, the purchase price shall be reduced by
the exercise price of any Option Stock that represents that portion of the
unexercised Option which was purchased and the exercise price of any Warrant
Stock that represents the portion of the unexercised Warrant that was purchased.
The Fund shall send to MCAF notice of its request to require the purchase not
later than ten days after the closing of the IPO or the Public Offering, as
applicable. The closing of any purchase of Shares by MCAF under this Section 2
shall occur within ten days after MCAF receives the Fund's notice. At such
closing, MCAF shall deliver to the Fund the purchase price specified herein in
immediately available funds, by wire transfer to an account designated by the
Fund, and the Fund shall deliver to MCAF certificates representing the Shares to
be purchased, duly endorsed for transfer or accompanied by duly executed stock
powers. The type and amount of the Shares to be purchased by MCAF shall be
determined by the Fund and communicated to MCAF at the time the Fund sends its
notice requesting the purchase. To the extent that only part of the Warrant is
purchased, then the amount of Warrant Stock and Additional Warrant Stock that
can be acquired upon exercise of the Warrant shall be reduced by the amount of
the Warrant purchased by MCAF. To the extent that only part of the Option is
purchased, then the amount of Option Stock that can be purchased upon exercise
of the Option shall be reduced by the amount of the Option purchased by MCAF. To
the extent that the certificates so delivered represent a number of Shares
greater than the number of those types being purchased, MCAF shall cause to be
issued to the Fund new certificates representing the unpurchased Shares of those
types, which certificates shall bear any legend required by applicable
agreements between MCAF and the Fund (other than certificates representing
shares, if any, which are freely transferable without restriction under
applicable securities laws, which shall not bear any legend). Notwithstanding
any other provision of this Section 2, if the Fund is permitted to include in
the IPO or the Public Offering and so sells that number of Shares which will
reduce the number of Shares (without double counting of the warrant and the
Option to the extent unexercised) immediately after the Public Offering to less
than five percent (5%) of the total MCAF Common Stock outstanding (without
counting as outstanding any rights to acquire MCAF Common Stock or securities or
debt convertible into Common Stock, other than Shares), then MCAF shall have no
obligation to purchase any Shares immediately after that offering as provided in
this Agreement.
3. 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.
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(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) Parallel Provisions. To the extent that MCA has an obligation
parallel to the obligation set forth in this Agreement to purchase any or all
Shares immediately following a Public Offering so as to reduce the holdings of
the Fund to five percent of the outstanding MCAF Common Stock following the
public offering and the Fund has rights to require such purchases, then the
rights of the Fund and the obligations of MCA as set forth in this Agreement
shall be in substitution of such other rights and obligations not in addition to
such other rights and obligations.
(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: ▇▇▇-▇▇▇-▇▇▇▇
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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.
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
(f) 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.
(g) 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.
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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:________________________________
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