<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
BINGHAM FINANCIAL SERVICES CORPORATION
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
090433-10-3
(CUSIP Number of Class of Securities)
Bingham Shareholder Group
C/O Mr. Jeffrey P. Jorissen
Bingham Financial Services Corporation
31700 Middlebelt Road, Suite 125
Farmington Hills, Michigan 48334
With a copy to:
Peter Sugar, Esq.
Jaffe, Raitt, Heuer & Weiss, P.C.
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
(313) 961-8380
(Name, address and telephone number of persons
authorized to receive notices and communications
on behalf of person(s) filing statement)
March 5, 1998
(Date of event which requires filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with the
statement [x]. (A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more than five
percent of the class of
<PAGE> 2
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class).
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
Exhibit Index on Page 33
Page 2 of 36 Pages
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
GROUP COMPOSED OF ALL OF THE REPORTING PERSONS LISTED
ON ATTACHED PAGES(1)
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF, AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
USA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 503,519(2)
NUMBER OF SHARES --------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 503,519(2)
WITH --------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
503,519(2)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
31.73%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) The Bloomfield Subgroup members, as defined herein, have also filed a
separate Schedule 13D covering their Share holdings, which Shares are also
included in this Schedule 13D. Daniel E. Bober and Creighton J. Weber have
also filed individual Schedules 13D for their Share holdings.
(2) Includes 10,001 shares issuable upon exercise of options exercisable
currently or within 60 days from the date hereof.
Page 3 of 36 Pages
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
JEFFREY P. JORISSEN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 14,833(1)
NUMBER OF SHARES -----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 14,833(1)
WITH -----------------------------------
10. SHARED DISPOSITIVE POWER
-----------------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,833(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.93%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Includes 3,333 shares issuable upon exercise of options exercisable
currently or within 60 days from the date hereof. Also includes 1,000
shares owned by Mr. Jorissen's son included for reporting purposes only; Mr.
Jorissen expressly disclaims beneficial ownership of those 1,000 shares.
Page 4 of 36 Pages
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
GARY A. SHIFFMAN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF, AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 51,667(1)
NUMBER OF SHARES ------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 51,667(1)
WITH -------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
51,667(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
3.26%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Includes 1,667 shares issuable upon exercise of options exercisable
currently or within 60 days from the date hereof. Also includes 25,000
shares owned by Sun Communities, Inc., of which Gary A. Shiffman is President
and Chief Executive Officer.
Page 5 of 36 Pages
<PAGE> 6
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
MILTON M. SHIFFMAN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 74,167(1)
NUMBER OF SHARES --------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 74,167(1)
WITH -------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
74,167(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
4.67%(2)
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Includes 1,667 shares issuable upon exercise of options exercisable
currently or within 60 days from the date hereof.
(2) As a result of the transactions described herein, Milton M. Shiffman no
longer holds five percent (5%) or more of any class of issued and outstanding
stock of the Issuer.
Page 6 of 36 Pages
<PAGE> 7
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
ROBERT H. ORLEY
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF, AF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 49,167(1)
NUMBER OF SHARES -------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 49,167(1)
WITH -------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
49,167(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
3.10%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Includes: 10,000 shares owned by Robert H. Orley; 1,667 shares issuable to
Mr. Orley upon exercise of options exercisable currently or within 60 days
from the date hereof; 30,000 shares owned by Four O Group L.L.C. and
administered by Mr. Orley as Manager; and 7,500 shares owned by Mr. Orley's
spouse.
Page 7 of 36 Pages
<PAGE> 8
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
BRIAN M. HERMELIN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC, PF
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 31,667(1)
NUMBER OF SHARES -------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH -------------------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 31,667(1)
WITH -------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,667(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
2.00%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Includes 1,667 shares issuable upon exercise of options exercisable
currently or within 60 days from the date hereof.
Page 8 of 36 Pages
<PAGE> 9
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
DANIEL E. BOBER
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 96,730
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER:
OWNED BY EACH ----------------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 96,730(1)
WITH ----------------------------------
10. SHARED DISPOSITIVE POWER:
-----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
96,730
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARE
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
6.10%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
1 Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 9 of 36 Pages
<PAGE> 10
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
CREIGHTON J. WEBER
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 96,730
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 96,730(1)
WITH ------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
96,730
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
6.10%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 10 of 36 Pages
<PAGE> 11
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
JOSEPH DROLSHAGEN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 25,695
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 25,695(1)
WITH ------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
25,695
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
1.62%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 11 of 36 Pages
<PAGE> 12
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
JAMES BENNETT
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 17,130
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 17,130(1)
WITH ------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,130
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
1.08%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 12 of 36 Pages
<PAGE> 13
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
PATRICIA JORGENSEN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 5,136
NUMBER OF SHARES ---------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 5,136(1)
WITH ------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,136
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.32%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 13 of 36 Pages
<PAGE> 14
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
DEBORAH JENKINS
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 13,689
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 13,689(1)
WITH --------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,689
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.86%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 14 of 36 Pages
<PAGE> 15
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
LYNNE BASZCZUK
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 1,708
NUMBER OF SHARES ---------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 1,708(1)
WITH -------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,708
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.11%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 15 of 36 Pages
<PAGE> 16
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
JAMES A. SIMPSON
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 15,000
NUMBER OF SHARES ----------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 15,000(1)
WITH --------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,000
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.95%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 16 of 36 Pages
<PAGE> 17
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
KATHERYNE L. ZELENOCK
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 7,700(1)
NUMBER OF SHARES ------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 7,700(1), (2)
WITH -----------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,700(1)
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
(1) Includes 100 shares owned by each of the Danielle Bober 1995 Irrevocable
Trust u/a/d December 15, 1995 and the Nicole Bober 1995 Irrevocable Trust
u/a/d December 15, 1995 administered by Katheryne L. Zelenock as Trustee.
Katheryne L. Zelenock exerts voting control, but expressly disclaims beneficial
ownership of those 200 shares.
(2) 7,500 shares are subject to transfer restrictions for a period of two years
from the date of acquisition, pursuant to an Escrow Agreement as described in
Item 6 below.
Page 17 of 36 Pages
<PAGE> 18
SCHEDULE 13D, CUSIP NO. 090433-10-3
KATHERYNE L. ZELENOCK, continued
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.49%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
Page 18 of 36 Pages
<PAGE> 19
SCHEDULE 13D
CUSIP NO. 090433-10-3
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF REPORTING PERSON
JEFFREY C. URBAN
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) X (b)
- --------------------------------------------------------------------------------
3. SEC ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
SC
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OR ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER: 2,500
NUMBER OF SHARES ---------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY EACH ----------------------
REPORTING PERSON 9. SOLE DISPOSITIVE POWER: 2,500(1)
WITH ------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,500
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW(11)
.16%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(1) Subject to transfer restrictions for a period of two years from the date of
acquisition, pursuant to an Escrow Agreement as described in Item 6 below.
Page 19 of 36 Pages
<PAGE> 20
1. SECURITY AND ISSUER.
This Statement relates to the common stock (the "COMMON STOCK" or the
"SHARES") of Bingham Financial Services Corporation (the "ISSUER"), whose
principal executive offices are located at 31700 Middlebelt Road, Suite 125,
Farmington Hills, Michigan 48334.
2. IDENTITY AND BACKGROUND.
This Statement is filed by a group which has been formed, the members
of which are: Jeffrey P. Jorissen, Gary A. Shiffman, Milton M. Shiffman, Robert
H. Orley and Brian M. Hermelin (together the "DIRECTOR SUBGROUP"); and Daniel E.
Bober, Creighton J. Weber, Joseph Drolshagen, James Bennett, Patricia Jorgensen,
Deborah Jenkins, Lynne Baszczuk, James A. Simpson, Katheryne L. Zelenock, and
Jeffrey C. Urban (together the "BLOOMFIELD SUBGROUP"). All of the above are
collectively referred to as the "GROUP".
The name, business address and present principal occupation, employment
or principal business of the Group members and certain other information is set
forth below. All Group members are citizens of the United States.
Page 20 of 36 Pages
<PAGE> 21
<TABLE>
<CAPTION>
<S> <C>
Name and Business Principal Business/
Address Principal Occupation
Jeffrey P. Jorissen C.F.O. and Senior Vice President
31700 Middlebelt Rd., Suite 125 Sun Communities, Inc.
Farmington Hills, Michigan 48334 (owner and manager of manufactured home
communities) President, C.E.O., C.F.O.
and Director of Issuer (mortgage
lender)
Gary A. Shiffman C.E.O. and President
31700 Middlebelt Rd., Suite 125 Sun Communities, Inc.
Farmington Hills, Michigan 48334 (owner and manager of manufactured home
communities) Secretary and Director of
Issuer (mortgage lender)
Milton M. Shiffman Chairman
31700 Middlebelt Rd., Suite 125 Sun Communities, Inc.
Farmington Hills, Michigan 48334 (owner and manager of manufactured home
communities) Director of Issuer (mortgage
lender)
Robert H. Orley Executive Vice President
31700 Middlebelt Rd., Suite 125 The Oxford Investment Group, Inc.
Farmington Hills, Michigan 48334 Vice President
Real Estate Interests, Inc.
(real estate investment and management)
Director of Issuer (mortgage lender)
Brian M. Hermelin Chief Operating Officer
31700 Middlebelt Rd., Suite 125 USA Jet Airlines, Inc.
Farmington Hills, Michigan 48334 (commercial charter air carrier)
Director of Issuer (mortgage lender)
Daniel E. Bober President
260 East Brown Street Bloomfield Acceptance
Suite 350 Company, LLC (commercial
Birmingham, Michigan 48009 mortgage lender)
Bloomfield Servicing Company, LLC
(commercial loan servicing
company)
Creighton J. Weber Executive Vice President
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Bloomfield Servicing Company, LLC
(commercial loan servicing company)
</TABLE>
Page 21 of 36 Pages
<PAGE> 22
<TABLE>
<CAPTION>
<S> <C>
Joseph Drolshagen Vice President and Loan Officer
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Vice President
Bloomfield Servicing Company, LLC
(commercial loan servicing company)
James Bennett Vice President and Loan Officer
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Vice President
Bloomfield Servicing Company, LLC
(commercial loan servicing company)
Patricia Jorgensen Vice President and Controller
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Bloomfield Servicing Company, LLC
(commercial loan servicing company)
Deborah Jenkins Vice President and Loan Officer
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Vice President
Bloomfield Servicing Company, LLC
(commercial loan servicing company)
Lynne Baszczuk Loan Analyst
260 East Brown Street Bloomfield Acceptance Company, LLC
Suite 350 (commercial mortgage lender)
Birmingham, Michigan 48009 Bloomfield Servicing Company, LLC
(commercial loan servicing company)
James A. Simpson Attorney and President
260 East Brown Street Simpson Zelenock, P.C.
Suite 300 (Attorneys and Counselors)
Birmingham, Michigan 48009
Katheryne L. Zelenock Attorney and Vice President
260 East Brown Street Simpson Zelenock, P.C.
Suite 300 (Attorneys and Counselors)
Birmingham, Michigan 48009
Jeffrey C. Urban Attorney
260 East Brown Street Simpson Zelenock, P.C.
Suite 300 (Attorneys and Counselors)
Birmingham, Michigan 48009
</TABLE>
Page 22 of 36 Pages
<PAGE> 23
None of the Group members have, during the last five years, been (i)
convicted in criminal proceedings (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, prohibiting or mandating activity subject to, federal or state
security laws or finding any violation with respect to such clause.
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Shares listed above as beneficially owned by the Director Subgroup
members: were purchased in the Initial Public Offering of the Issuer (the
"I.P.O."); were acquired in subsequent market acquisitions; were purchased by
Sun Communities, Inc. in a private sale prior to the I.P.O.; or are issuable
upon exercise of options exercisable currently or within 60 days from the date
hereof. The Bloomfield Subgroup members, who were formerly Members of Bloomfield
Acceptance Company, L.L.C. ("BAC") and Bloomfield Servicing Company, L.L.C.,
("BSC"), received their Shares through a mergers among BAC, BSC and wholly-owned
subsidiaries of Issuer, whereby the Issuer became the sole owner of BAC and BSC
(the "MERGER"). The shares received by the Bloomfield Subgroup members were
commensurate with each individual's percentage of ownership of BAC and/or BSC.
4. PURPOSE OF TRANSACTION.
The issuance of shares to the Bloomfield Subgroup members in connection
with the Merger was for the purpose of compensating such members for the
relinquishment of their respective ownership interests in BAC and BSC in the
Merger. The acquisition of all other shares beneficially owned by the Group
members was for purposes of investment.
Prior to the Merger, the Issuer granted certain options to the Director
Subgroup members pursuant to the Issuer's Stock Option Plan, providing the right
to purchase additional shares of the Issuer's common stock as further described
in Item 6 below.
The Merger, as described in Item 3 above, was effectuated as of March
5, 1998, pursuant to that certain Agreement and Plan of Merger among the Issuer
and certain of its wholly-owned subsidiaries, BAC, BSC, and the individual
members of the Bloomfield Subgroup (the "MERGER AGREEMENT"), a copy of which is
attached to the Issuer's Form 8-K dated March 13, 1998. In connection with the
Merger, the Bloomfield Subgroup members received Issuer's Shares as shown in
Item 2 above. In connection
Page 23 of 36 Pages
<PAGE> 24
with their continuing employment, the Bloomfield Subgroup members also were
granted options under the Issuer's Stock Option Plan, providing the right to
purchase additional shares of the Issuer's common stock as further described in
Item 6 below.
In connection with the Merger, the Group members entered into a
Shareholders Agreement (the "GROUP SHAREHOLDERS AGREEMENT"), dated March 4, 1998
and effective as of March 5, 1998, a copy of which is attached hereto, and which
is described in detail in Item 6 below. The Shareholders Agreement provides,
among other things, for an increase in the number of Directors of the Issuer,
for the nominations and elections of Daniel E. Bober, Creighton J. Weber and
Arthur A. Weiss as Directors of the Issuer, and for the appointment of Daniel E.
Bober to the Executive Committee of the Issuer's Board of Directors.
The members of the Bloomfield Subgroup also entered into an additional
Shareholders Agreement (the "BLOOMFIELD SHAREHOLDERS AGREEMENT"), as of March 5,
1998, a copy of which is attached hereto, and which is described in detail in
Item 6, below.
Page 24 of 36 Pages
<PAGE> 25
5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Members of the Group together beneficially own 503,519 shares of
the Issuer's common stock, which constitutes 31.71% of the 1,586,819 issued and
outstanding shares (including 10,001 shares which are issuable upon the exercise
of options exercisable currently or within 60 days from the date hereof) of
common stock as of March 13, 1998.
(i) Jeffrey P. Jorissen is the beneficial owner of 14,833
shares of the Issuer's common stock (including 3,333 shares which are issuable
upon the exercise of options exercisable currently or within 60 days from the
date hereof and including 1,000 shares owned by Mr. Jorissen's son), which
constitutes .93% of the 1,586,819 issued and outstanding shares of common stock
as of March 13, 1998. Mr. Jorissen expressly disclaims beneficial ownership of
the 1,000 shares owned by his son.
(ii) Gary A. Shiffman is the beneficial owner of 51,667
shares of the Issuer's common stock (including 25,000 shares owned by Sun
Communities, Inc., of which Gary A. Shiffman is President and C.E.O., and
1,667 shares which are issuable upon the exercise of options exercisable
currently or within 60 days from the date hereof), which constitutes .93% of
the 1,586,819 issued and outstanding shares of common stock as of March 13,
1998.
(iii) Milton M. Shiffman is the beneficial owner of 74,167
shares of the Issuer's common stock (including 1,667 shares which are issuable
upon the exercise of options exercisable currently or within 60 days from the
date hereof), which constitutes 4.67% of the 1,586,819 issued and outstanding
shares of common stock as of March 13, 1998.
(iv) Robert H. Orley is the beneficial owner of 49,167
shares of the Issuer's common stock (including 30,000 shares owned by Four O
Group L.L.C., of which Mr. Orley is Manager, 7,500 shares owned by Mr. Orley's
spouse, and 1,667 shares which are issuable upon the exercise of options
exercisable currently or within 60 days from the date hereof), which
constitutes 3.10% of the 1,586,819 issued and outstanding shares of common
stock as of March 13, 1998.
(v) Brian M. Hermelin is the beneficial owner of 31,167
shares of the Issuer's common stock (including 1,667 shares which are issuable
upon the exercise of options exercisable currently or within 60 days from the
date hereof), which constitutes 2.00% of the 1,586,819 issued and outstanding
shares of common stock as of March 13, 1998.
Page 25 of 36 Pages
<PAGE> 26
(vi) Daniel E. Bober is the owner of 96,730 shares of the
Issuer's common stock which constitutes 6.10% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(vii) Creighton J. Weber is the owner of 96,730 shares of
the Issuer's common stock which constitutes 6.10% of the 1,586,819
issued and outstanding shares of common stock as of March 13, 1998.
(viii) Joseph Drolshagen is the owner of 25,695 shares of the
Issuer's common stock which constitutes 1.62% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(ix) James Bennett is the owner of 17,130 shares of the
Issuer's common stock which constitutes 1.08% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(x) Patricia Jorgensen is the owner of 5,136 shares of the
Issuer's common stock which constitutes .32% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(xi) Deborah Jenkins is the owner of 13,689 shares of the
Issuer's common stock which constitutes .86% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(xii) Lynne Baszczuk is the owner of 1,708 shares of the
Issuer's common stock which constitutes .11% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(xiii) James A. Simpson is the owner of 15,000 shares of the
Issuer's common stock which constitutes .95% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(xiv) Katheryne L. Zelenock is the beneficial owner of 7,700
shares of the Issuer's common stock (including 100 shares each of the Danielle
Bober 1995 Irrevocable Trust u/a/d December 15, 1995 and the Nicole Bober 1995
Irrevocable Trust u/a/d December 15, 1995 (together the "TRUSTS") administered
by Katheryne L. Zelenock as Trustee), which constitutes .49% of the 1,586,819
issued and outstanding shares of common stock as of March 13, 1998. Katheryne L.
Zelenock exerts voting control, but
Page 26 of 36 Pages
<PAGE> 27
expressly disclaims beneficial ownership, of those 200 shares owned by the
Trusts.
(xv) Jeffrey C. Urban is the owner of 2,500 shares of the
Issuer's common stock which constitutes .16% of the 1,586,819 issued and
outstanding shares of common stock as of March 13, 1998.
(b) Subject to the terms of the Group Shareholders Agreement, the
Bloomfield Shareholders Agreement, the Escrow Agreement and the Special
Consideration Escrow Agreement, all as described in Item 6 below, each Group
member has the sole power to vote, or to direct the voting of, and is so powered
to dispose of, or to direct the disposition of, the shares of common stock
beneficially owned by such person as indicated in subsection (a) above.
Page 27 of 36 Pages
<PAGE> 28
(c)
<TABLE>
<CAPTION>
NAME DATE TRANSACTION NUMBER OF SHARES PRICE PER SHARE
<S> <C> <C> <C> <C>
(i) Jeffrey P. Jorissen 1/12/98 market purchase 1,500 $10.125
(ii) Daniel E. Bober 3/5/98 Acquired by merger 96,730 N/A
(iii) Creighton J. Weber 3/5/98 Acquired by merger 96,730 N/A
(iv) Joseph Drolshagen 3/5/98 Acquired by merger 25,695 N/A
(v) James Bennett 3/5/98 Acquired by merger 17,130 N/A
(vi) Patricia Jorgensen 3/5/98 Acquired by merger 5,136 N/A
(vii) Deborah Jenkins 3/5/98 Acquired by merger 13,689 N/A
(viii) Lynne Baszczuk 3/5/98 Acquired by merger 1,708 N/A
(ix) James A. Simpson 3/5/98 Acquired by merger 15,000 N/A
(x) Katheryne L. Zelenock 3/5/98 Acquired by merger 7,500 N/A
(xi) Jeffrey C. Urban 3/5/98 Acquired by merger 2,500 N/A
</TABLE>
(d) Not applicable.
(e) Not applicable.
Page 28 of 36 Pages
<PAGE> 29
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
All of the Group members are subject to the Group Shareholders
Agreement, which governs all of the shares of common stock of the Issuer
actually owned by each of the Group members as of March 5, 1998 and all of the
shares of Common Stock of the Issuer individually acquired by any such Group
member thereafter1, and which provides, among other things:
A. Each Group member will take those actions necessary to
nominate and elect Daniel E. Bober, Creighton J. Weber and Arthur A.
Weiss to the Board of Directors of the Issuer, and to accomplish the
elections of other director-nominees endorsed by the Board of Directors
from time to time;
B. Each Group member who is a Director of the Issuer shall vote to
appoint Daniel E. Bober to the Executive Committee of the Board of
Directors, and shall not vote to expand the size of the Executive
Committee beyond three members without Mr. Bober's consent;
C. No Group member shall sell, convey, hypothecate or otherwise
transfer ownership of the shares of Issuer: (i) for a period of two
years following the date of the Shareholders Agreement, and (ii) after
two years, unless the shares are registered pursuant to an effective
registration statement or in accordance with an exemption from state
and federal securities laws;
D. The shares of each Group member (except those shares acquired in
ordinary brokerage transactions and not pursuant to the Shareholders
Agreement or as part of the Company's initial public offering) shall be
marked with a Legend concerning the limitations upon sale, transfer, or
assignment of the shares, and otherwise incorporating the terms and
conditions of the Shareholders Agreement;
E. Each Group member shall have "TAG-ALONG RIGHTS" in the event that
any other one or more Group member(s) (so long as the Group holds 10%
or more of the Issuer) proposes to sell five percent (5%) or more of
the then-issued and
- --------------------------
1 The Group Shareholders Agreement governs only those shares actually owned or
subsequently acquired by a Group member in his or her individual capacity, and
does not extend to Shares beneficially owned by such persons but actually held
by other persons or entities. Accordingly, a total of 429,818 Shares of the
Issuer's Shares are governed by the Group Shareholders Agreement as of March 13,
1998.
Page 29 of 36 Pages
<PAGE> 30
outstanding common stock of Issuer to a third party. The Tag-Along
Rights permit the Group members not originally a part of the proposed
purchase transaction to require the proposed purchaser to purchase
shares from those other Group members upon the same terms as was
proposed with the proposed transferor;
F. In the event that the Issuer proposes to register additional shares
within two years after the Agreement, the Bloomfield Subgroup members
shall have the right to request that their shares be included in the
registration (so long as the Group as a whole holds 10% or more of the
shares of Issuer) (the "PIGGYBACK RIGHTS");
G. Bloomfield Subgroup Members who are holders of 30% or more of the
shares of the Issuer may demand that the Issuer use its best efforts to
registration of those shares not yet registered (the "DEMAND
REGISTRATION RIGHTS");
H. Daniel E. Bober and Creigthon J. Weber may, at any time after two
years from the date of the Shareholders Agreement, request that the
Issuer effect a registration on Form S-3 for shares held by the
Bloomfield Subgroup Members, so long as the aggregate offering price of
the shares so registered would exceed $500,000 and the Group as a whole
holds 10% or more of the shares of the Issuer (the "S-3 REGISTRATION
RIGHTS");
I. The Issuer shall pay all expenses incurred with any registration,
filing or qualification of shares with respect to a total of three
registrations pursuant to the Piggyback Rights, Demand Registration
Rights, and S-3 Registration Rights;
J. To the extent permitted by law, the Issuer will indemnify and hold
harmless each Group member against any losses, claims, damages or
liabilities insofar as those claims, losses or damages arise out of
certain actions or inactions by the Issuer. By like token, each Group
member will indemnify and hold the Issuer harmless from losses, claims,
damages, or liabilities arising out of information erroneously or
inaccurately provided by the Group member; and
K. For a period of 180 days following the effective date of any
registration pursuant to the Piggyback Rights, Demand Registration
Rights, or S-3 Registration Rights, no Group member shall directly or
indirectly sell, offer to sell, contract to sell, grant any option to
purchase or other transfer except Common Stock included in that
Page 30 of 36 Pages
<PAGE> 31
registration, unless the Issuer and its managing underwriters should
otherwise agree.
In addition, the Bloomfield Subgroup Members are subject to a separate
Shareholders Agreement (the "BLOOMFIELD SHAREHOLDERS AGREEMENT", a copy of which
is attached hereto, which governs all Shares acquired by the Bloomfield Subgroup
members as part of the Merger (but not Shares acquired in individual market
transactions or otherwise), and which provides, among other things, as follows:
A. The Bloomfield Subgroup members will vote their respective shares in
accordance with the determination of the holders of a majority in
interest of the Bloomfield Subgroup members;
B. So long as the firm of Simpson Zelenock, P.C. (or any successor to
it) shall perform legal services for BAC or BSC, James A. Simpson,
Katheryne L. Zelenock and Jeffrey C. Urban shall cause their Shares to
be voted in accordance with the determination of the holders of a
majority interest of the other Bloomfield Subgroup members;
C. Daniel E. Bober and Creighton J. Weber shall act as agent and
attorney-in-fact for each Bloomfield Subgroup member to: (i) negotiate,
settle, compromise and adjust any indemnification by the Issuer against
the Bloomfield Subgroup members as a group (as opposed to one or more,
but less than all, of the Bloomfield Subgroup members) by way of offset
under or pursuant to certain provisions of the Merger Agreement among
Issuer, BAC and BSC, and the Bloomfield Subgroup members; (ii)
negotiate and agree upon any release of Shares from the Escrow
Agreement; and (iii) to take any action (including the giving of
consent or approval, or the voting of Shares) that has been approved or
authorized pursuant to the Bloomfield Shareholders Agreement;
D. In the event that a Bloomfield Subgroup member who is an employee of
BAC or BSC shall voluntarily terminate his or her employment, or have
his or her employment terminated for any reason other than death or
permanent disability prior to the conclusion of the restrictions
imposed by the Shareholders Agreement among all of the Group members
(the "LOCK-UP PERIOD"), then the other Bloomfield Subgroup members
shall have the option to purchase all of the Shares then held by that
member, for the lesser of (i) the Share Price as of the effective date
of termination of Employment or (ii) the Share Price as of the date
when the Lock-up Period shall expire. A terminating member shall cease
to have any rights in or with respect to any Additional
Page 31 of 36 Pages
<PAGE> 32
Consideration under or pursuant to Section 1.3 of the Merger Agreement,
and the Additional Consideration that would have been allocated to that
Shareholder shall be reallocated pro rata among the Other Shareholders
who then retain rights to Additional Consideration under the Merger
Agreement.
E. Following the conclusion of the Lock-up Period, no Bloomfield
Subgroup member who is an Employee or Affiliate of BAC or BSC (other
than Patricia Jorgensen or Lynne Baszczuk) shall sell or transfer more
than 50% of his or her Shares subject to the Bloomfield Shareholders
Agreement without the approval of the Board of Directors of BAC or BSC
(the "MINIMUM HOLDING REQUIREMENT").
F. In the event that a Bloomfield Subgroup member shall desire to
transfer any portion of his or her Shares subject to the Bloomfield
Shareholders Agreement, the other members of the Bloomfield Subgroup
shall have a first option to purchase those Shares upon the terms and
conditions offered by any third-party purchaser.
Pursuant to the terms of the Merger Agreement, the Shareholders
Agreement, and the Bloomfield Shareholders Agreement, the Issuer and the
Bloomfield Subgroup members have entered into an Escrow Agreement and Special
Consideration Escrow Agreement, both dated March 5, 1998, copies of which are
attached hereto, pursuant to which the Shares received by the Bloomfield
Subgroup members as part of the merger transaction are held in escrow by NBD
Bank, to ensure conformity to the requirements of the Shareholders Agreement and
Bloomfield Shareholders Agreement.
Also as part of the Merger Agreement, the Bloomfield Subgroup members
may be entitled to receive additional Shares (the "ADDITIONAL CONSIDERATION")
based on the financial performance of BAC and BSC, as further outlined in the
Merger Agreement.
Finally, each of the Group members is a participant in the Issuer's
Stock Option Plan and has been granted certain options to purchase additional
shares of the Issuer's common stock. A total of 30,000 options, each
representing the right to purchase one share of the Issuer's common stock, have
been granted to the Director Subgroup and allocated among such persons, of which
10,001 options are exercisable currently or within 60 days from the date hereof,
and the remainder of which will become exercisable during a period ending May
20, 2003. A total of 30,000 options, each representing the right to purchase one
share of the Issuer's common stock, have been granted to the Bloomfield
Subgroup, some of which have been allocated to individual members of the
Bloomfield Subgroup and others of which have not yet been
Page 32 of 36 Pages
<PAGE> 33
allocated. None of the options allocated to members of the Bloomfield Subgroup
become exercisable until at least one year from the date of the Merger;
therefore, individual allocations are not listed in this filing. Individual
vesting rights will be acknowledged in future filings as required by law when
such options become exercisable.
Each Bloomfield Subgroup member has executed a Power of Attorney, a
copy of which is attached hereto, permitting Daniel E. Bober or Creighton J.
Weber to execute and file forms relating to Share ownership on behalf of such
member.
The Bloomfield Subgroup members have also filed a separate Schedule
13D covering their Share holdings, which Shares are also included in this
Schedule 13D. Daniel E. Bober and Creighton J. Weber have also filed
individual Schedules 13D for their Share holdings.
Otherwise, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among any members of the Group and any person
with respect to any securities of the Issuer, including but not limited to,
transfer of voting of any of the securities, finders fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, divisions of
profit or loss, or the giving or withholding of proxies.
7. EXHIBITS:
Exhibit 1: Agreement for Joint Filing of Schedule 13D.
Exhibit 2: Power of Attorney Agreements for Bloomfield Subgroup Members
Exhibit 3: Shareholders Agreement
Exhibit 4: Bloomfield Shareholders Agreement
Exhibit 5: Escrow Agreement
Exhibit 6: Special Consideration Escrow Agreement
Page 33 of 36 Pages
<PAGE> 34
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
March 13, 1998 /s/ Jeffrey P. Jorissen
----------------------------
JEFFREY P. JORISSEN
/s/ Gary A. Shiffman
----------------------------
GARY A. SHIFFMAN
/s/ Milton M. Shiffman
----------------------------
MILTON M. SHIFFMAN
/s/ Robert H. Orley
----------------------------
ROBERT H. ORLEY
/s/ Brian M. Hermelin
----------------------------
BRIAN M. HERMELIN
/s/ Daniel E. Bober
----------------------------
DANIEL E. BOBER
/s/ Creighton J. Weber
----------------------------
CREIGHTON J. WEBER
/s/ Joseph Drolshagen
----------------------------
JOSEPH DROLSHAGEN
/s/ James Bennett
----------------------------
JAMES BENNETT
/s/ Patricia Jorgensen
----------------------------
PATRICIA JORGENSEN
/s/ Deborah Jenkins
----------------------------
DEBORAH JENKINS
/s/ Lynne Baszczuk
----------------------------
LYNNE BASZCZUK
/s/ James A. Simpson
----------------------------
JAMES A. SIMPSON
/s/ Katheryne L. Zelenock
----------------------------
KATHERYNE L. ZELENOCK
/s/ Jeffrey C. Urban
----------------------------
JEFFREY C. URBAN
Page 34 of 36 Pages
<PAGE> 1
EXHIBIT 1
AGREEMENT FOR JOINT FILING OF SCHEDULE 13D
Jeffrey P. Jorissen, Gary A. Shiffman, Milton M. Shiffman, Robert H.
Orley, Brian M. Hermelin, Daniel E. Bober, Creighton J. Weber, Joseph
Drolshagen, James Bennett, Patricia Jorgensen, Deborah Jenkins, Lynne Baszczuk,
James A. Simpson, Katheryne L. Zelenock, and Jeffrey C. Urban, hereby agree to
jointly file a report on Schedule 13D pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, relating to their formation of a group with the purpose
of investing in the securities of Bingham Financial Services Corporation.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be executed in its behalf this 13th day of March, 1998.
/s/ Jeffrey P. Jorissen
----------------------------
JEFFREY P. JORISSEN
/s/ Gary A. Shiffman
----------------------------
GARY A. SHIFFMAN
/s/ Milton M. Shiffman
----------------------------
MILTON M. SHIFFMAN
/s/ Robert H. Orley
----------------------------
ROBERT H. ORLEY
/s/ Brian M. Hermelin
----------------------------
BRIAN M. HERMELIN
/s/ Daniel E. Bober
----------------------------
DANIEL E. BOBER
/s/ Creighton J. Weber
----------------------------
CREIGHTON J. WEBER
/s/ Joseph Drolshagen
----------------------------
JOSEPH DROLSHAGEN
/s/ James Bennett
----------------------------
JAMES BENNETT
/s/ Patricia Jorgensen
----------------------------
PATRICIA JORGENSEN
/s/ Deborah Jenkins
----------------------------
DEBORAH JENKINS
Page 35 of 36 Pages
<PAGE> 2
/s/ Lynne Baszczuk
----------------------------
LYNNE BASZCZUK
/s/ James A. Simpson
----------------------------
JAMES A. SIMPSON
/s/ Katheryne L. Zelenock
----------------------------
KATHERYNE L. ZELENOCK
/s/ Jeffrey C. Urban
----------------------------
JEFFREY C. URBAN
Page 36 of 36 Pages
<PAGE> 1
EXHIBIT 2
POWER OF ATTORNEY
I, Daniel E. Bobler of 39047 Geneva Drive, Farmington Hills, Michigan,
appoint Creighton J. Weber, of Bloomfield Acceptance Company, L.L.C.,
Birmingham, Michigan, as my Attorney-In-Fact with full power, unless I
otherwise direct, to conduct all of my affairs with regard to the filing of
forms and schedules related to my ownership of shares in Bingham Financial
Services Corporation ("Bingham") the same as I could do if personally present
and with full legal capacity, including the power:
1. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
2. To perform all other acts necessary or incident to the execution of the
powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- --------------------------- /s/ Daniel E. Bober
-------------------------
- --------------------------- DANIEL E. BOBER
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Daniel E. Bober.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires: _____________
<PAGE> 2
POWER OF ATTORNEY
I, Creighton J. Weber of 5340 Hollow Drive, Bloomfield Hills, Michigan,
appoint Daniel E. Bober, of Bloomfield Acceptance Company, L.L.C., Birmingham,
Michigan, as my Attorney-In-Fact with full power, unless I otherwise direct,
to conduct all of my affairs with regard to the filing of forms and schedules
related to my ownership of shares in Bingham Financial Services Corporation
("Bingham") the same as I could do if personally present and with full legal
capacity, including the power:
3. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
4. To perform all other acts necessary or incident to the execution of the
powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ---------------------------- /s/ Creighton J. Weber
-------------------------------
- ---------------------------- CREIGHTON J. WEBER
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Creighton J. Weber.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
------------------
<PAGE> 3
POWER OF ATTORNEY
I, Joseph Drolshagen of 975 Woods Lane Court, Grosse Pointe Woods,
Michigan, appoint Daniel E. Bober and Creighton J. Weber, of Bloomfield
Acceptance Company, L.L.C., Birmingham, Michigan, or either of them, as my
Attorney-In-Fact with full power, unless I otherwise direct, to conduct all of
my affairs with regard to the filing of forms and schedules related to my
ownership of shares in Bingham Financial Services Corporation ("Bingham") the
same as I could do if personally present and with full legal capacity,
including the power:
5. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
6. To perform all other acts necessary or incident to the execution of the
powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ---------------------------- /s/ Joseph Drolshagen
----------------------------
- ---------------------------- JOSEPH DROLSHAGEN
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Joseph Drolshagen.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
------------
<PAGE> 4
POWER OF ATTORNEY
I, James Bennett of 5939 Patterson, Troy, Michigan, appoint Daniel E.
Bober and Creighton J. Weber, of Bloomfield Acceptance Company, L.L.C.,
Birmingham, Michigan, or either of them, as my Attorney-In-Fact with full
power, unless I otherwise direct, to conduct all of my affairs with regard to
the filing of forms and schedules related to my ownership of shares in Bingham
Financial Services Corporation ("Bingham") the same as I could do if personally
present and with full legal capacity, including the power:
7. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
8. To perform all other acts necessary or incident to the execution of the
powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ------------------------- /s/ James Bennett
-------------------------
- ------------------------- JAMES BENNETT
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by James Bennett.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
--------------
<PAGE> 5
POWER OF ATTORNEY
I, Deborah Jenkins of 25323 Ursuline, St. Clair Shores, Michigan, appoint
Daniel E. Bober and Creighton J. Weber, of Bloomfield Acceptance Company,
L.L.C., Birmingham, Michigan, or either of them, as my Attorney-In-Fact with
full power, unless I otherwise direct, to conduct all of my affairs with regard
to the filing of forms and schedules related to my ownership of shares in
Bingham Financial Services Corporation ("Bingham") the same as I could do if
personally present and with full legal capacity, including the power:
9. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
10. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ----------------------------------
/s/ Deborah Jenkins
-------------------------------
- ---------------------------------- DEBORAH JENKINS
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Deborah Jenkins.
------------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
-------------------
<PAGE> 6
POWER OF ATTORNEY
I, Patricia Jorgensen of 249 Park Drive, Clawson, Michigan, appoint Daniel
E. Bober and Creighton J. Weber, of Bloomfield Acceptance Company, L.L.C.,
Birmingham, Michigan, or either of them, as my Attorney-In-Fact with full
power, unless I otherwise direct, to conduct all of my affairs with regard to
the filing of forms and schedules related to my ownership of shares in Bingham
Financial Services Corporation ("Bingham") the same as I could do if personally
present and with full legal capacity, including the power:
11. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
12. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ---------------------------------
/s/ Patricia Jorgensen
--------------------------------
- --------------------------------- PATRICIA JORGENSEN
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Patricia Jorgensen.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
-------------
<PAGE> 7
POWER OF ATTORNEY
I, Lynne Baszczuk of 22136 Birchwood, Eastpointe, Michigan, appoint Daniel
E. Bober and Creighton J. Weber, of Bloomfield Acceptance Company, L.L.C.,
Birmingham, Michigan, or either of them, as my Attorney-In-Fact with full
power, unless I otherwise direct, to conduct all of my affairs with regard to
the filing of forms and schedules related to my ownership of shares in Bingham
Financial Services Corporation ("Bingham") the same as I could do if personally
present and with full legal capacity, including the power:
13. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
14. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ----------------------------------
/s/ Lynne Baszczuk
-----------------
- ---------------------------------- LYNNE BASZCZUK
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Lynne Baszczuk.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
-----------------
<PAGE> 8
POWER OF ATTORNEY
I, James A. Simpson of 1235 Lyonhurst, Birmingham, Michigan, appoint
Daniel E. Bober and Creighton J. Weber, of Bloomfield Acceptance Company,
L.L.C., Birmingham, Michigan, or either of them, as my Attorney-In-Fact with
full power, unless I otherwise direct, to conduct all of my affairs with regard
to the filing of forms and schedules related to my ownership of shares in
Bingham Financial Services Corporation ("Bingham") the same as I could do if
personally present and with full legal capacity, including the power:
15. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
16. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ------------------------------
/s/ James A. Simpson
----------------------------------
- ------------------------------ JAMES A. SIMPSON
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by James A. Simpson.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
----------------
<PAGE> 9
POWER OF ATTORNEY
I, Katheryne L. Zelenock of 1155 Derby #7, Birmingham, Michigan, appoint
Daniel E. Bober and Creighton J. Weber, of Bloomfield Acceptance Company,
L.L.C., Birmingham, Michigan, or either of them, as my Attorney-In-Fact with
full power, unless I otherwise direct, to conduct all of my affairs with regard
to the filing of forms and schedules related to my ownership of shares in
Bingham Financial Services Corporation ("Bingham") the same as I could do if
personally present and with full legal capacity, including the power:
17. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
18. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- ---------------------------
/s/ Katheryne L. Zelenock
-------------------------------
- --------------------------- KATHERYNE L. ZELENOCK
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Katheryne L. Zelenock.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
-----------------
<PAGE> 10
POWER OF ATTORNEY
I, Jeffrey C. Urban of 1312 Potomac Drive, Rochester Hills, Michigan,
appoint Daniel E. Bober and Creighton J. Weber, of Bloomfield Acceptance
Company, L.L.C., Birmingham, Michigan, or either of them, as my
Attorney-In-Fact with full power, unless I otherwise direct, to conduct all of
my affairs with regard to the filing of forms and schedules related to my
ownership of shares in Bingham Financial Services Corporation ("Bingham") the
same as I could do if personally present and with full legal capacity,
including the power:
19. To endorse, or sign all forms and schedules that may be filed with any
Federal, State or local regulatory agency or other entity relating in any
fashion to my ownership of shares of common stock in Bingham or my
participation in any Shareholders Group related to Bingham, including Schedules
13D or amendments thereto. However, my Attorney-In-Fact shall not have the
power to vote my shares or otherwise act with regard to my holdings in Bingham;
and
20. To perform all other acts necessary or incident to the execution of
the powers enumerated above.
Any lawful act performed by my Attorney-In-Fact shall be binding upon
myself, my heirs, beneficiaries, personal representatives and assigns. I
reserve the right to amend or revoke this Power of Attorney at any time;
provided, however, any financial institution or other party dealing with my
Attorney-In-Fact may rely upon this Power of Attorney until receipt by it of a
duly executed copy of my revocation thereof. Subject to the powers enumerated
above, I hereby retain all legal title to my property, and I do not intend by
this Power of Attorney to create a trust or to hold my Attorney-In-Fact
responsible as a trustee.
My Attorney-In-Fact shall have no legal liability, in the absence of bad
faith or willful default, for failing to act under this power or for acting in
accord with my specific written instruction.
In addition to any powers enumerated above, but only to the extent
necessary to effect the powers otherwise granted hereunder, in the event of my
incompetency or other inability to provide instruction, I grant to my
Attorney-In-Fact all the same powers and discretion and all of the same legal
and investment protection that are provided for a duly qualified conservator of
an estate and guardian of a person under Michigan law.
I intend that this Power of Attorney be in addition to any other specific
power of attorney which I may have previously executed or may later execute, to
the extent not inconsistent with this Power of Attorney, shall remain in full
force and effect.
Any reproduced copy of this signed original shall be deemed to be an
original counterpart of this Power of Attorney. This Power of Attorney shall
not be affected by my legal incapacity during my lifetime, except as provided
by statute.
Dated this 13th day of March, 1998.
IN THE PRESENCE OF:
- -----------------------------
/s/ Jeffrey C. Urban
-----------------------------
- ----------------------------- JEFFREY C. URBAN
STATE OF MICHIGAN )
)ss.
COUNTY OF OAKLAND )
This document was acknowledged before me on this 13th day of March, 1998,
by Jeffrey C. Urban.
----------------------------------------
Notary Public, Oakland, County, Michigan
My Commission Expires:
--------------
<PAGE> 1
EXHIBIT 3
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "Agreement"), dated March 4, 1998, is
made and entered into by and among BINGHAM FINANCIAL SERVICES CORPORATION, a
Michigan corporation (the "Company") and the persons listed on Schedule 1
attached hereto (each of whom is referred to herein individually as a
"Shareholder" and collectively as the "Shareholders"). This Agreement shall be
effective as of the Effective Time, as defined below.
RECITALS
A. All of the members of Bloomfield Acceptance Company, L.L.C., a
Michigan limited liability company ("BAC") and Bloomfield Servicing Company,
L.L.C., a Michigan limited liability company ("BSC"), respectively, as listed on
Schedule 1 hereto (each a "Member" and collectively, the "Members"), have
entered into that certain Agreement and Plan of Merger (the "Merger Agreement"),
dated of even date herewith, by and among the Company, BAC, BSC, BAC Acquiring
Corp., a Michigan corporation and a wholly owned subsidiary of the Company, BSC
Acquiring Corp., a Michigan corporation and a wholly owned subsidiary of the
Company, and each of the Members.
B. Pursuant to the Merger Agreement, BAC Acquiring Corp. shall merge
with and into BAC, and BSC Acquiring Corp. shall merge with and into BSC, with
the Members becoming shareholders of the Company, with respective shareholdings
as set forth on Schedule 1 hereto, all as of the effective time of the mergers
(the "Effective Time").
C. The Company's authorized capital stock consists of 10,000,000 shares
of common stock and 10,000,000 shares of preferred stock, of which there were
1,295,000 shares of common stock, without par value, issued and outstanding as
of January 31, 1998 (the "Common Stock"). The shares of the Common Stock have
all of the rights, preferences and limitations of shares of common stock stated
in the Michigan Business Corporation Act, as amended (the "Act").
D. The number of authorized and outstanding shares of Common Stock, as
set forth in paragraph C above, will not change prior to the Effective Time.
E. At the Effective Time, BAC Acquiring Corp. and BSC Acquiring Corp.
shall cease to exist separately, and shall be merged with and into BAC and BSC
(together the "Subsidiaries"), respectively, in accordance with the provisions
of the Merger Agreement and in accordance with the provisions of and with the
effect provided in the Act and in the Michigan Limited Liability Company Act.
F. At the Effective Time, the member interests of each Member shall be
converted into shares of the Company in the respective amounts set forth on
Schedule 1 hereto and each Member shall thereby become a shareholder of the
Company. In addition to the Members, current directors of the Company (the
"Directors") have executed and joined this
<PAGE> 2
Agreement as Shareholders and own shares of Common Stock in the amounts set
forth on Schedule 1 hereto.
NOW THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, the
Company and each of the Shareholders agree as follows:
SECTION 1. DIRECTORS, OFFICERS AND VOTING.
1.1 Appointment and Nomination of Bober and Weber. Each of the
Directors agrees that, no later than the first meeting of the Board of Directors
of the Company (the "Board") following the date of this Agreement, the Directors
shall expand the number of directors of the Company by two in accordance with
the Company Bylaws and shall cause Daniel E. Bober ("Bober") and Creighton J.
Weber ("Weber") to be appointed to the Board. Each of the Directors further
agrees that so long as he remains a Director of the Company and until this
Agreement is terminated or expires, he will: (a) vote to nominate Bober for
election or reelection as a director of the Company and vote to appoint Bober to
the Executive Committee of the Company's board; (b) neither propose, nor vote,
to expand the size of the Executive Committee of the Board beyond three (3) in
number without Bober's consent; (c) until the later of the expiration of his
term at the annual meeting of the Company's stockholders to be held in 1999, or
his successor is duly elected and qualified, vote to retain Weber as a director
of the Company; and (d) take all action necessary from time to time (including,
without limitation, the execution of written consents, the calling of special
meetings, the filling of vacancies, and the waiving of notice and attendance at
meetings) to accomplish the nominations of Bober and Weber in accordance with
and to the extent of this Section 1.
1.2 Voting Agreement. Each of the Shareholders agrees that he or she
shall take all action necessary from time to time (including, without
limitation, the voting of securities of the Company, the execution of written
consents, the calling of special meetings, the removal of directors, the filling
of vacancies on the Board of Directors, the waiving of notice and attendance at
meetings) to accomplish the elections of Weber and Bober in accordance with and
to the extent of this Section 1, and to accomplish the elections to the Board of
Arthur A. Weiss and other director-nominees endorsed by the Board.
1.3 Appointment of Vice Presidents. Each of the Directors agrees that,
no later than the first meeting of the Board following the date of this
Agreement, the Directors shall nominate and elect each of Bober and Weber to be
a Vice President of the Company, in accordance with the Bylaws of the Company,
until his successor is duly elected. Each of the Directors further agrees that
he or she shall take all action necessary, including the casting of votes as
directors and the execution of written consents, to accomplish the election of
each of Bober and Weber as a Vice President of the Company in accordance with
and to the extent of this Section 1.3.
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<PAGE> 3
SECTION 2. TAG-ALONG RIGHTS.
2.1 Proposed Transfer. If one or more of the Shareholders proposes (the
person or group making such proposal being the "Selling Group" and the remaining
Shareholders being the "Tag-Along Group") a Transfer (as defined below) of five
percent (5%) or more of the then-issued and outstanding common stock of the
Company, and provided that the Transfer is not an Exempt Transfer (as defined
below), then each of the Shareholders comprising the Tag-Along Group (each a
"Tag-Along Shareholder") shall have the right ("Tag-Along Right") to require the
proposed purchaser(s) to purchase from such Tag-Along Shareholder up to the
number of whole shares of Common Stock not to exceed the number derived by
multiplying the total number of shares of Common Stock to be purchased by the
proposed purchaser(s) by a fraction, the numerator of which is the total number
of shares of Common Stock owned by such Tag-Along Shareholder, and the
denominator of which is the total number of shares of Common Stock owned by the
Shareholders. Any shares purchased from Tag-Along Shareholders pursuant to this
Section shall be paid for at the same price per Share and upon the same terms of
payment and conditions, including price per share and the total number of shares
proposed to be transferred, as such proposed Transfer by the Selling Group (the
"Transfer Terms").
2.2 Tag-Along Notice. The Selling Group shall promptly notify the
Company and the Tag-Along Group in the event they propose to make a Transfer
giving rise to Tag-Along Rights, and shall furnish the Tag-Along Group with the
Transfer Terms and a copy of any written offer or agreement pertaining thereto.
The Tag-Along Right may be exercised by any Tag-Along Shareholder by delivery of
a written notice to the Selling Group (the "Tag-Along Notice") within twenty
(20) days following such Tag-Along Shareholder's receipt of such notice from the
Selling Group. The Tag-Along Notice shall state the number of shares of Common
Stock that such Tag-Along Shareholder proposes to include in the Transfer to the
proposed purchaser (not to exceed the number determined in accordance with
Section 2.1 above). In the event that the proposed purchaser does not purchase
the specified number of shares from the Tag-Along Shareholders on the Transfer
Terms, then the Selling Group shall only be permitted to sell any other number
of shares of Common Stock to the proposed purchaser (an "Alternate Transfer")
if: (a) the number of shares to be sold in the Alternate Transfer is less than
five percent (5%) of the then-issued and outstanding common stock of the
Company; or (b) the Tag-Along Shareholders are given five (5) days written
notice of the proposed Alternate Transfer and the right to participate pro rata
in the Alternate Transfer (calculated using the formula set forth in Section
2.1) under the same terms and conditions as the Selling Group.
2.3 Closing. At the closing of any Transfer pursuant to this Section 2,
the proposed purchaser shall remit to each selling Shareholder the consideration
for the total sales price of the Common Stock of such Shareholder sold pursuant
hereto, upon delivery by such Shareholder of certificate(s) for such shares duly
endorsed in blank for transfer or accompanied by stock power(s) duly executed in
blank and such other transfer documentation, including but not limited to
representations and warranties of title, as shall be reasonably required by the
purchaser or its counsel.
3
<PAGE> 4
2.4 Transfer. A "Transfer" of stock under this Section 2 shall mean a
sale to be consummated in a single transfer or a series of related transfers, to
a single purchaser or a group of purchasers, as part of a single transaction or
group of related transactions. For purposes of this Section 2, the following
shall be deemed to be a single purchaser: (a) relatives of a person or the
person's spouse living in the same household, (b) trusts or estates in which any
one person has a 10 percent or greater interest or of which he or she is
trustee, executor or administrator, and (c) any number of corporations,
partnerships, limited liability companies or other entities in which any one
person holds a 10 percent or greater beneficial interest. For purposes of this
Section 2, transactions which occur or are proposed to occur more than six (6)
months apart shall not be considered to be a group of related transactions, so
long as those transactions are not part of an expressly related group of
transactions.
2.5 Exempt Transfer. The following transactions shall constitute
"Exempt Transfers" as that term is used in this Section 2: (a) a Transfer to the
Company; (b) a Transfer entirely between or among any of the Shareholders
executing this Agreement; (c) a Transfer by will or intestate succession to a
Shareholder's executors, administrators, testamentary trustees, legatees or
beneficiaries; (d) 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 (and/or his spouse,
children, grandchildren, parents and/or siblings) (the parties identified in (c)
and (d), or any one of them are hereinafter collectively referred to as
"Permitted Transferees"); or (e) a Transfer in a public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Act"), or pursuant to Rule 144 promulgated thereunder.
SECTION 3. REGISTRATION RIGHTS.
The Company covenants and agrees as follows:
3.l Definitions. For purposes of this Section 3:
(a) The terms "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document pursuant to the Act, and the declaration
or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means Common Stock of
the Company and any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of any capital stock of the Company,
held by the Holders (as defined below); provided, however, that Common
Stock or other securities shall only be treated as Registrable
Securities if and so long as (1) they have not been sold to or through
a broker or dealer or underwriter in a public distribution or a public
securities transaction, and (2) they have not been sold in a
transaction exempt from the registration and prospectus delivery
4
<PAGE> 5
requirements of the Act under Section 4(1) thereof so that all transfer
restrictions and restrictive legends with respect thereto are removed
upon the consummation of such sale;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common
Stock outstanding which are, and the number of shares of Common Stock
issuable pursuant to then exercisable or convertible securities which
are, Registrable Securities;
(d) The term "Holder" means any person who was a Member of BAC
and/or BSC and is the record owner of Registrable Securities, or any
assignee thereof in accordance with Section 3.12 hereof; and
(e) The term "SEC" means the Securities and Exchange
Commission or any other federal agency at the time administering the
Act.
3.2 Company Registration. If at any time more than two years after the
date of this Agreement, the Company (without any obligation to do so) proposes
to register any of its stock or other securities under the Act in connection
with the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan, or a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a SEC
Rule 145 transaction), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within thirty (30) days after mailing of such notice by the Company
in accordance with Section 5.6, the Company shall, subject to the provisions of
Sections 3.6, 3.7, 3.8 and 3.9, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
Notwithstanding the foregoing, the Company will not be required to give notice
to the Holders of Registrable Securities if the underwriters managing the
proposed offering have advised the Company in writing that in their judgment
market conditions will not allow the inclusion of any secondary shares in such
offering. In the event the managing underwriters and the Company subsequently
determine to add any secondary shares in the offering, such notice shall be
provided, and each Holder shall have the registration rights provided in this
Section 3.
3.3 Demand Registration. Subject to the terms of this Agreement, in the
event that the Company shall, not sooner than two years after the date of this
Agreement, receive from the Holders representing at least thirty percent (30%)
of the Registrable Securities then outstanding, a written notice that it or they
intend to offer or cause to be offered for public sale at least twenty-five
percent (25%) of the Registrable Securities then outstanding (or any lesser
percentage if the Registrable Securities to be included in the registration
statement have an aggregate offering price to the public greater than
$3,000,000), the Company will so notify all Holders. Upon written request of any
Holder given within fifteen (15) days after the receipt by such Holder from the
Company of such notification, the Company will use its best efforts to cause
such of the Registrable Securities as may be requested by any Holder (including
the
5
<PAGE> 6
Holder giving the initial notice of intent to offer) to be registered under
the Securities Act as expeditiously as possible (a "Demand Registration"). The
Company shall not be required to effect more than one (1) Demand Registration.
If (i) in the good faith judgment of the Board of Directors of the Company, a
Demand Registration would be materially detrimental to the Company and the Board
of Directors of the Company concludes, as a result, that it is essential to
defer the filing of such registration statement at such time, and (ii) the
Company shall furnish to each Holder a certificate signed by the President of
the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be materially detrimental to the Company for such
registration statement to be filed in the near future, then the Company shall
have the right to defer such filing for the period during which such Demand
Registration would be materially detrimental, provided that the Company may not
defer the filing for a period of more than ninety (90) days after receipt of the
request for a Demand Registration, and more than once in any 12-month period.
3.4 Form S-3 Registration. In case, at any time after two years from
date of this Agreement, the Company shall receive from Bober and Weber a written
request or requests that the Company effect a registration on Form S-3 for a
public offering of Registrable Securities the aggregate offering price of which
would exceed $500,000.00, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as
are specified in a written request given within fifteen (15) days after
receipt of such written notice from the Company, and the Company shall
continue to keep such Form S-3 current and effective for a period of
one (1) year following its initial filing or until all securities
registered under such Form S-3 have been sold, whichever sooner occurs,
provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this
Section 3.4: (i) if Form S-3 is not available for such offering by the
Holders; (ii) if the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors of the Company it would be
detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company
shall have the right to defer the filing of the Form S-3 registration
statement for a period of not more than ninety (90) days after receipt
of the request of the Holder or Holders under this Section 3.4; (iii)
if the Company has, within the twelve (12) month period preceding the
date of such request, already effected two registrations for the
Holders pursuant to Section 3.2, 3.3 or this Section 3.4; or (iv) in
any particular jurisdiction in which the Company would be
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<PAGE> 7
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after
receipt of the request or requests of the Holders.
3.5 Expenses of Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to a total of three registrations,
whether pursuant to Section 3.2, 3.3 or 3.4 or a combination thereof, including
(without limitation) all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses and fees and reimbursements the counsel, independent certified
public accountants, underwriters and other persons retained by the Company, the
expense of reporting or disclosing this Agreement or its attendant rights and
obligations (including filings required under Section 13(d) of the Securities
Exchange Act of 1934, as amended), the expense of any annual audit, the expense
of any liability insurance and the expense and fees for listing the securities,
but excluding underwriting discounts and commissions and stock transfer taxes
relating to Registrable Securities.
3.6 Obligations of the Company. Whenever required under Section 3.2,
3.3 or 3.4 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts
and take all steps necessary to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of
the Registrable Securities registered thereunder, keep such
registration statement effective for up to 90 days (or longer if
otherwise provided in this Section 3) or until all of the securities
registered thereunder are sold, whichever occurs sooner.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Act with respect to the disposition
of all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may
reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Furnish to the counsel of any Holder, a copy of the
registration statement five (5) days prior to the filing of such
registration statement.
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<PAGE> 8
(e) Use its best efforts to register and qualify the
securities covered by such registration statement for listing on a
national securities exchange, the National Association of Securities
Dealers, Inc. Automated Quotation ("NASDAQ") or such other similar
exchange.
(f) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(g) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of
any event as a result of which the prospectus included in such
registration statement, as then in effect, 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 the circumstances then existing.
3.7 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 3 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
3.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 3.2 or 3.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by the persons
entitled to select the underwriters, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by Holders to be included in such offering
exceeds the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among all
selling stockholders
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<PAGE> 9
according to the total amount of securities owned by each selling stockholder or
in such other proportions as shall mutually be agreed to by such selling
stockholders). For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a holder of Registrable
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder" and
any pro-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares owned by all entities and individuals
included in such "selling stockholder," as defined in this sentence.
3.9 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 3.
3.10 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 3:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become
subject under the Act, or the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the 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 (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, or
the 1934 Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any
legal or other expenses reasonably incurred by one law firm retained by
them (or such additional law firms retained by a Holder or Holders if
such Holder or Holders reasonably believe there exists a conflict of
interest among them) in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
the indemnity agreement contained in this subsection 3.10(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any loss, claim,
damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in
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<PAGE> 10
connection with such registration by any such Holder, underwriter or
controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration
statement and any controlling person of any such underwriter or other
Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject,
under the Act, or the 1934 Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by
such Holder expressly for use in connection with such registration; and
each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant
to this subsection 3.10(b), in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this subsection
3.10(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be
unreasonably withheld; provided, that, the obligation to indemnify will
be in several, not joint and several, among such sellers of Registrable
Securities, and in no event shall any indemnity under this subsection
3.10(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 3.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying patty under this
Section 3.10, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the
fees and expenses to be paid by the indemnifying patty, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 3.8, but the
failure to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 3.10.
10
<PAGE> 11
(d) The obligations of the Company and Holders under this
Section 3.10 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section
3, and otherwise.
3.11 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public without registration, the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of
SEC Rule 144, the Act and the 1934 Act, (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as
may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
3.12 Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 3 may only be
assigned to a Permitted Transferee of the underlying Registrable Securities who
has executed and delivered to the Company a counterpart of this Agreement,
binding such Permitted Transferee to all of the restrictions and obligations
contained herein.
3.13 "Market Stand-Off" Agreement. Each Holder hereby agrees that for a
period of 180 days following the effective date of any registration effected
pursuant to Sections 3.2, 3.3 or 3.4 (provided the Holders are given written
notice of the offering at least fifteen (15) days prior to the Company's filing
with the SEC of a registration statement relating thereto), it shall not, unless
otherwise agreed by the Company and the managing underwriters, if any, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock included in such registration. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to the
Registrable Securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
11
<PAGE> 12
3.14 Termination. The rights provided in this Section 3 shall terminate
upon the termination of this Agreement.
SECTION 4. TRANSFER RESTRICTION AND STOCK CERTIFICATE LEGEND.
4.1 Restriction on Transfer. No Shareholder who was a Member may sell,
convey, hypothecate or otherwise transfer ownership of any of the shares of
Common Stock held by such Shareholder: (i) for a period of two (2) years
following the date of this Agreement; and (ii) after the two years from the date
of this Agreement, unless such shares are registered pursuant to an effective
registration statement under, or in accordance with an exemption from, federal
and state securities laws. Notwithstanding anything contained herein to the
contrary, any Shareholder may transfer all or part of his stock of the Company
to a Michigan revocable inter-vivos trust, of which such Shareholder is the
grantor, or to another entity controlled by such Shareholder formed primarily
for estate planning purposes, for the benefit of said Shareholder (and/or his
spouse, children, grandchildren, parents and/or siblings); provided, however,
that in such event (i) all stock so transferred shall remain subject to the
terms and conditions of this Agreement; (ii) the Permitted Transferee shall make
no transfers of such stock except in accordance with the terms of this
Agreement; (iii) the Company shall have received at least ten (10) days prior
written notice of such transfer together with such organizational and transfer
documentation pertaining to the proposed transfer as the Company shall request;
and (iv) the Company shall have received the agreement, in writing, of such
Permitted Transferee to be bound in all respects by this Agreement. Upon the
occurrence of any event requiring or permitting the purchase of stock under this
Agreement, such Shareholder's Permitted Transferee or any subsequent transferee
shall be required to sell or transfer his stock as provided in this Agreement,
in the same manner and to the same extent as the original Shareholder would have
been required to sell or transfer such stock. All references in this Agreement
to stock of the Company shall be deemed to include stock owned by any transferee
or Permitted Transferee, except that payment for such stock shall be made to the
record owner thereof.
4.2 Required Legend. Simultaneously with the execution of this
Agreement, each Shareholder shall surrender all certificates of stock, except
those certificates representing shares which are or were acquired through
ordinary brokerage transactions and not pursuant to this Agreement or as part of
the Company's initial public offering, to the Company for endorsement with the
following legend, which shall be conspicuously placed on such certificates:
"The sale, transfer, assignment, pledge, hypothecation or
other disposition of the shares represented by this certificate is
restricted by the provisions of the Shareholders Agreement, dated as of
March 4, 1998 (as it may be amended from time to time), to which the
Company and the holder of this certificate, among others, are parties,
a copy of which may be inspected at the principal office of the
Company. The provisions of such agreement are incorporated herein by
reference."
All certificates of stock issued to or acquired by any such Shareholder
after the date of this Agreement, except certificates representing shares which
are or were acquired through
12
<PAGE> 13
ordinary brokerage transactions and not pursuant to this Agreement or as part of
the Company's initial public offering, shall also bear the foregoing legend;
provided, however, that the Company shall remove the required legend from any
shares transferred to a third party (i.e., a party other than a Shareholder or
Permitted Transferee) as permitted in this Agreement, so that such transferee
shall not be subject to the requirements contained in this Agreement.
4.3 Effect of Missing Legend. Section 4.2 above notwithstanding, the
fact that such legend has not been placed on a given certificate of Stock held
by any Shareholder who was a Member hereunder shall not affect the rights of the
parties to this Agreement in any way, and all certificates of stock on which
such legend has not been placed, except those certificates representing shares
which are or were acquired through ordinary brokerage transactions and not
pursuant to this Agreement or as part of the Company's initial public offering,
shall be deemed to have had that legend placed on them for the purposes of this
Agreement.
4.4 Availability of Agreement. The Company shall maintain a copy of
this Agreement at its principal place of business and shall make such copies
available for review to any person who shall inquire about the Agreement.
SECTION 5. MISCELLANEOUS.
5.1 Waivers and Amendments. With the written consent of all of the
Shareholders, the obligations of the Company and the rights of the holders of
Common Stock under this Agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its board of directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such waiver or supplemental agreement shall reduce
the aforesaid unanimity which is required to consent to any waiver or
supplemental agreement, without the unanimous consent of the record or
beneficial holders of all of the then outstanding Common Stock, on a fully
converted basis. Upon the effectuation of each such waiver, consent, agreement
of amendment or modification, the Company promptly shall give written notice
thereof to the record holders of the then outstanding Common Stock. This
Agreement or any provision hereof may not be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 5.1.
5.2 Termination. All of the rights and obligations in this Agreement
shall terminate ten (10) years from the date of this Agreement, or upon the
consummation of a sale which has been subject to, and has complied with, the
tag-along rights as set forth in Section 2 above (to the extent of the shares of
Common Stock included in such sale), or upon the dissolution or liquidation of
the Company, whichever occurs sooner. If not sooner terminated, all tag-along
rights (under Section 2) and registration rights (under Section 3) shall be
permanently terminated when the Shareholders, as a group, hold less than ten
percent (10%) of the issued and outstanding Common Stock of the Company.
13
<PAGE> 14
5.3 Governing Law. This Agreement shall be governed in all respects by
the laws of the State of Michigan as such laws are applied to agreements between
Michigan residents entered into and to be performed entirely within Michigan.
5.4 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
5.5 Entire Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof.
5.6 Notices, Etc. Ad notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the seventh day following mailing by registered
air mail, postage prepaid, addressed (a) if to the Shareholders, as indicated on
Schedule 1 attached hereto, or at such other address as it shall have furnished
to the Company, (b) if to the Company, to Bingham Financial Services
Corporation, 31700 Middlebelt Road, Suite 125, Farmington Hills, Michigan 48334,
and addressed to the attention of the corporate secretary, or at such other
address as the Company shall have furnished to the Shareholders, or (c) if to
any other holder of Common Stock at such address as such holder shall have
furnished to the Company in writing, or, until such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
Common Stock, who so furnished an address to the Company.
5.7 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any holder of any securities issued or sold or to be
issued or sold hereunder, upon any breach or default of the Company under this
Agreement shall impair any such right, power or remedy of such holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any holder of any breach or
default under this Agreement, or any waiver on the part of any holder of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
5.8 Severability. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall be modified in such manner as to be
valid, legal, and enforceable but so as to most nearly retain the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
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<PAGE> 15
5.9 Titles and Subtitles. The titles and subtitles of this Agreement
are intended for reference and shall not by themselves determine the
construction or interpretation of this Agreement.
5.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.11 Expenses. The Company and each Shareholder shall pay its own costs
and expenses in connection with the negotiation, execution, delivery and
performance of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Shareholders Agreement
to be executed by themselves or by their respective representatives thereunto
duly authorized as of the day and year first above written. The undersigned
Shareholders execute this Agreement with respect to all shares of capital stock
of the Company currently owned and hereafter acquired, to the extent provided
herein.
"The Company"
BINGHAM FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By: /s/ Jeffrey P. Jorissen
-------------------------------
Jeffrey P. Jorissen
Its: President, Chief Executive
Officer and Chief Financial
Officer
[signatures continue on following page]
15
<PAGE> 16
Shareholders Agreement
Bingham Financial Services Corporation
signatures, continued
"Shareholders"
/s/ Jeffrey P. Jorissen /s/ Daniel E. Bober
- --------------------------- ----------------------------------
JEFFREY P. JORISSEN DANIEL E. BOBER
/s/ Gary A. Shiffman /s/ Creighton J. Weber
- --------------------------- ----------------------------------
GARY A. SHIFFMAN CREIGHTON J. WEBER
/s/ Milton M. Shiffman /s/ Joseph Drolshagen
- --------------------------- ----------------------------------
MILTON M. SHIFFMAN JOSEPH DROLSHAGEN
/s/ Robert H. Orley /s/ James Bennett
- --------------------------- ----------------------------------
ROBERT H. ORLEY JAMES BENNETT
/s/ Brian M. Hermelin /s/ Patricia Jorgensen
- --------------------------- ----------------------------------
BRIAN M. HERMELIN PATRICIA JORGENSEN
/s/ Deborah Jenkins
----------------------------------
DEBORAH JENKINS
/s/ Lynne Baszczuk
----------------------------------
LYNNE BASZCZUK
/s/ James A. Simpson
----------------------------------
JAMES A. SIMPSON
/s/ Katheryne L. Zelenock
----------------------------------
KATHERYNE L. ZELENOCK
/s/ Jeffrey C. Urban
----------------------------------
JEFFREY C. URBAN
16
<PAGE> 17
SCHEDULE 1 TO SHAREHOLDERS AGREEMENT
BINGHAM FINANCIAL SERVICES CORPORATION
Shareholder Number of Shares
- ----------- ----------------
"Directors"
Jeffrey P. Jorissen 10,500
Gary A. Shiffman 25,000
Milton M. Shiffman 72,500
Robert H. Orley 10,000
Brian M. Hermelin 30,000
"Members"
Daniel E. Bober 96,730
Creighton J. Weber 96,730
Joseph Drolshagen 25,695
James Bennett 17,130
Patricia Jorgensen 5,136
Deborah Jenkins 13,689
Lynne Baszczuk 1,708
James A. Simpson 15,000
Katheryne L. Zelenock 7,500
Jeffrey C. Urban 2,500
17
<PAGE> 1
EXHIBIT 4
BLOOMFIELD SHAREHOLDERS AGREEMENT
THIS BLOOMFIELD SHAREHOLDERS AGREEMENT (this "AGREEMENT") is made and
entered into effective as of March 5, 1998, by and among Daniel E. Bober
("BOBER"), Creighton J. Weber ("WEBER"), Joseph Drolshagen, James Bennett,
Deborah Jenkins, Patricia Jorgensen, Lynne Baszczuk, James A. Simpson, Katheryne
L. Zelenock and Jeffrey C. Urban (each of whom is referred individually as a
"SHAREHOLDER" and collectively as the "SHAREHOLDERS").
RECITALS
The Shareholders are the owners of certain stock (the "STOCK") of
Bingham Financial Services Corporation ("BINGHAM") issued to each of them in
connection with the merger of Bloomfield Acceptance Company, L.L.C. ("BAC") and
Bloomfield Servicing Company, L.L.C. ("BSC"), respectively, with BAC Acquiring
Corp., a Michigan corporation, and BSC Acquiring Corp., a Michigan corporation,
respectively (each of which was a wholly owned subsidiary of Bingham). The
merger was effected contemporaneously with the execution and delivery of this
Agreement, under and pursuant to an Agreement and Plan of Merger (the "MERGER
AGREEMENT"), dated as of February 17, 1998, by and among all of the foregoing
parties.
Immediately prior to the execution of this Agreement, the Shareholders
have joined in the execution of a Shareholders Agreement (the "BINGHAM
SHAREHOLDERS AGREEMENT") with Bingham and Jeffrey P. Jorissen, Gary A. Shiffman,
Milton M. Shiffman, Robert H. Orley and Brian M. Hermelin, to which this
Agreement is subject in all particulars.
NOW THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, each
of the Shareholders agrees as follows:
1. TERM. All of the rights and obligations in this Agreement shall
terminate 10 years from the date of this Agreement, or upon the consummation of
a sale of the Stock which has been subject to, and has complied with, the
"tag-along rights" as set forth in Section 2 of the Bingham Shareholders
Agreement (but in that event, termination shall only be effective with respect
to and to the extent of the shares of Stock included in any such sale), or upon
the dissolution or liquidation of Bingham, whichever occurs sooner (the "TERM").
2. PERFORMANCE OF BINGHAM SHAREHOLDERS AGREEMENT. Each of the
Shareholders has executed the Bingham Shareholders Agreement, and acknowledges
that it is binding on them in accordance with its terms, and that the terms and
provisions of this Agreement are subject to the Bingham Shareholders Agreement.
Therefore: (i) no action shall be taken by any Shareholder hereunder that will
cause a breach, or violation of or default under any term, provision or
requirement of the Bingham Shareholders Agreement; and (ii) each Shareholder
hereunder will observe, perform and discharge each and every obligation imposed
on them under the Bingham Shareholders Agreement.
3. VOTING AGREEMENT. During the term of this Agreement, and to the
extent that any vote, consent or approval is permitted to or required of the
Shareholders (including any action to be taken as a group under the Bingham
Shareholders Agreement), in connection with which the Shareholders' discretion
is not controlled by the Bingham Shareholders Agreement, each Shareholder shall
take all action necessary from time to time to vote his or her shares of Stock
(and/or grant his or her approval and/or consent) in accordance with the
determination of the holders of a Majority in Interest of the shares of Stock
subject to this Agreement.
4. SPECIAL VOTING AGREEMENT. For so long as the firm of Simpson
Zelenock, P.C. (or any successor to it) shall be performing legal services for
BAC and/or BSC (the "COMPANIES"), James A. Simpson, Katheryne L. Zelenock and
Jeffrey C. Urban (together "SZU") shall take all action necessary
<PAGE> 2
from time to time to accomplish the voting of their respective shares of Stock
in accordance with the determination of the holders of a Majority in Interest of
the shares of Stock subject to this Agreement, determined without first taking
into consideration any Stock held by SZU.
5. SPECIAL POWER OF ATTORNEY. Each Shareholder hereby makes,
constitutes, and appoints Bober and Weber as their agent and attorney-in-fact in
their name, place and stead, to take the following actions: (i) to negotiate,
settle, compromise and adjust any indemnification claim by Bingham against the
Shareholders as a group (as opposed to one or more, but less than all, of the
Shareholders - hereafter the "SHAREHOLDER GROUP"), by way of offset under or
pursuant to the provisions of Article 8 of the Merger Agreement; (ii) to
negotiate and agree upon any release of shares of Stock (in whole or in part) to
the Shareholder Group from the Escrow Agreement among the Shareholders, Bingham
and NBD Bank (as Escrow Agent), dated March 5, 1998, and/or under or pursuant to
the provisions of Article 8 of the Merger Agreement; and (iii) to take any
action (including the giving of consent or approval, or the voting of shares of
Stock) that has been approved or authorized under or pursuant to the terms and
conditions of this Agreement, for which purpose the Shareholders hereby grant
Bober and Weber an irrevocable proxy to vote each of their shares of Stock in
order to execute all actions to be taken hereunder in accordance with the terms,
provisions and requirements of this Agreement. This Power of Attorney is a
special Power of Attorney coupled with an interest, and shall not be revoked and
shall survive the assignment, delivery, or transfer by the Shareholder of any
portion of his or her Stock and, being coupled with an interest, shall survive
the death or disability or cessation of the existence as a legal entity of the
Shareholder. Each Shareholder hereby gives and grants to Bober and Weber, acting
together, full power and authority to do and perform each and every act and
thing whatsoever requisite, necessary or appropriate to be done in or in
connection with this Power of Attorney as fully to all intents and purposes as
he or she might or could do if personally present, hereby ratifying all that
those attorneys shall lawfully do or cause to be done by virtue of this Power of
Attorney. The existence of this Power of Attorney shall not preclude execution
of any such instrument by the Shareholder individually on any such matter, or
the existence and implementation of any other power of attorney under the Escrow
Agreement. Any person dealing with Bingham, BAC and/or BAC, or their Affiliates,
may conclusively presume and rely on the fact that any such instrument executed
by Bober and Weber pursuant to this Power of Attorney is authorized, regular and
binding without further inquiry. This Power of Attorney may be exercised by
Bober and Weber by a facsimile signatures of both of them or by listing all of
the Shareholders executing any instrument with a single signature by both Bober
and Weber acting as attorney-in-fact for all of them.
6. RESTRICTIONS UPON TRANSFERS AND OTHER RIGHTS DURING LOCK-UP PERIOD.
During the period of time under which any sale, transfer, assignment,
hypothecation, pledge, gift or other disposal of any Stock (each a "TRANSFER")
by any Shareholder would be restricted by the provisions of Section 4.1 of the
Bingham Shareholders Agreement (the duration of which restrictions thereunder is
hereafter referred to as the "LOCK-UP PERIOD"), no such Transfer shall occur
except in accordance with the provisions and requirements in (i) the Bingham
Shareholder Agreement and (ii) this Agreement. During the Lock-up Period, all
Shareholders shall be subject to the following:
A. Permitted Transfers. Only the following Transfers shall be
permitted under this Agreement (each a "PERMITTED TRANSFER"):
(1) Transfers among two or more of the Shareholders,
provided that Transfers among SZU shall be first
among them, pro rata (or among those of them who
shall remain Shareholders), to the extent that they
shall determine by agreement among themselves (a copy
of any such agreement must be provided to and be
acceptable to Bingham and a Majority in Interest of
the Other Shareholders).
(2) Any Shareholder may Transfer all or part of his or
her Stock to a Michigan revocable inter-vivos trust
of which that Shareholder is the grantor, or to
another entity controlled by that Shareholder formed
primarily for estate planning purposes, for the
benefit of that Shareholder (and/or his or her
spouse, children
2
<PAGE> 3
and/or grandchildren). Any Transfer in this manner
shall be deemed to be a Transfer within the
Shareholder Group.
(3) Each such Permitted Transfer shall be subject to the
following conditions and requirements: (i) all Stock
so Transferred shall remain subject to the terms and
conditions of this Agreement and the Bingham
Shareholders Agreement; (ii) the Permitted Transferee
shall make no Transfers of that Stock except in
accordance with the terms of this Agreement and the
Bingham Shareholders Agreement; (iii) Bingham and the
Other Shareholders shall have received at least ten
(10) days prior written notice of the proposed
Transfer together with those organizational and
transfer documentation pertaining to the proposed
transfer that Bingham, Bober and/or Weber shall
request; and (iv) Bingham and the Other Shareholders
(as defined in Paragraph 11.A. below) shall have
received the written agreement of the Permitted
Transferee to be bound in all respects by this
Agreement and the Bingham Shareholders Agreement.
B. Termination of Employment. In the event that a Shareholder who
is an Employee of either of the Companies shall voluntarily
terminate his or her employment with such Company or
Companies, or whose employment shall be terminated for any
reason (other than by reason of death or Permanent
Disability), in either case on or before the date when the
Lock-up Period shall expire, the following options, rights and
obligations shall arise:
(1) Voluntary Termination or Termination for Cause. In
the event of a voluntary termination by a
Shareholder, or a discharge for Cause, the Other
Shareholders shall have the option to purchase all of
the shares of Stock then held by that Shareholder,
for the lesser of (i) the Share Price as of the
effective date of termination of Employment or (ii)
the Share Price as of the date when the Lock-up
Period shall expire. The Other Shareholders shall
give written notice of their intention to exercise
this option within five Business Days after the end
of the Lock-up Period, and if exercised shall
complete the purchase of all such Stock for cash (or
in other good funds) within that five day period.
(2) Share Price. The Share Price shall be determined by
taking the average of the mean between the bid and
ask closing quotations for the five trading days
immediately prior to the applicable dates (or, if
available, the closing prices) of such shares of
Stock on the NASD Over the Counter Bulletin Board (or
an equivalent trading market on which those shares
are then traded).
(3) Registration Postponement. In the event that any
shares of Stock that are subject to the foregoing
option are not then registered as provided under
Section 3 of the Bingham Shareholders Agreement, the
closing of the sale (but not the effective date for
valuation of the Share Price) shall be postponed, at
the option of a Majority in Interest of the Other
Shareholders exercising the option to purchase,
elected within 30 days after their exercise of their
option to purchase the shares of Stock, until those
shares become registered (as defined in Section
3.1[a] of that Agreement), but no shall such
postponement extend for longer than 120 days in the
aggregate.
(4) Forfeit of Earnout. The terminating Shareholder shall
cease to have any rights in or with respect to any
Additional Consideration under or pursuant to Section
1.3 of the Merger Agreement, and the Additional
Consideration that would have been allocated to that
Shareholder shall be reallocated prorata among the
Other Shareholders who then retain rights to
Additional Consideration under the Merger Agreement.
The pro-rata share of the Additional Consideration to
be reallocated to those Other Shareholders shall be
determined for each Other Shareholder by
3
<PAGE> 4
using a fraction, the numerator of which is the total
number of shares of Stock originally issued for the
benefit of each such Other Shareholders as Initial
Consideration, Special Consideration and/or
Additional Consideration (after the award of all
Additional Consideration but without the shares of
Stock to be reallocated hereunder), and the
denominator of which is the total number of shares of
all Stock issued to all Other Shareholders as Initial
Consideration, Special Consideration and the
Additional Consideration as it shall be earned under
Section 1.3 of the Merger Agreement but without the
shares of Stock to be reallocated hereunder). In each
case, the number of shares in the numerator or
denominator shall be adjusted to reflect any shares
of Stock that have been Transferred pursuant to a
Transfer permitted under or pursuant to the Bingham
Shareholders Agreement (i.e., to reflect shares of
Stock no longer held within the Shareholder Group).
(5) Definition of Permanent Disability. For the purpose
of this Agreement, the definition of "PERMANENT
DISABILITY" shall be as follows: (i) A period of 180
consecutive days during which a Shareholder (as an
employee) fails to perform his or her customary
duties under employment arrangements with the
Companies as a result of incapacity due to physical
or mental illness; or (ii) any other physical or
mental condition for which the respective Board of
Directors of the Company or Companies approves that
Shareholder's retirement from active employment based
on a condition that they specifically recognize by
written Board Resolution to be a permanent
disability.
C. Effect of Continuing Escrow. In the event that at the
expiration of the Lock-Up Period any portion or all of the
Stock continues to be held under and pursuant to the terms of
the Escrow Agreement, then the sale and purchase of Stock
under the provisions of the foregoing Paragraph 6.B shall be
postponed until the final resolution of all disputes
thereunder and the release of the Stock (or that portion
thereof to be released) therefrom. This delay shall not,
however, affect the determination of the sale price, which
shall be established without regard to this delay, but shall
be subject to reduction to reflect any shares of the Stock
that are offset by Bingham under the terms of the Escrow
Agreement and Article 8 of the Merger Agreement.
7. POST LOCK-UP PERIOD TRANSFERS AND RESTRICTIONS. After the
expiration of the Lock-up Period, no Shareholder shall Transfer any portion or
all of his or her Stock (except in connection with a Permitted Transfer under
Paragraph 6.A) without fully complying with the following:
A. Minimum Required Holding. Without the approval of the Board of
Directors of BAC or BSC (as applicable), no Shareholder (other
than Lynne Baszczuk or Patricia Jorgensen) who is an Employee
or Affiliate of the Companies shall Transfer more than 50% of
his or her Stock to any person (in one or more Transfers on
cumulative basis, determined taking into account all Stock
originally held by that Shareholder and/or acquired hereafter
in relation to that Stock), but not taking into account Stock
that is not subject to this Agreement. This requirement is
hereafter referred to as the "MINIMUM REQUIRED HOLDING" and it
shall apply to all other provisions of this Agreement after
the expiration of the Lock-Up Period. An "EMPLOYEE" is any
person who is actually employed on a full or part time basis
by one or both of the Companies, Bingham or any other
Affiliate of Bingham. An "AFFILIATE OF THE COMPANIES" is any
person who provides goods or services to one or both of the
Companies, Bingham or any other Affiliate of Bingham. An
"AFFILIATE OF BINGHAM" is any business entity in which
Bingham, directly or indirectly, holds or controls 50% or more
of the equity securities entitled to vote on governance
matters generally.
4
<PAGE> 5
B. Option to Purchase. Subject to the Minimum Required Holding
provisions in the foregoing Paragraph 7.A, in the event that
any Shareholder desires to Transfer any portion of or interest
in his or her Stock, to a person other than a Permitted
Transferee, the Other Shareholders shall have the first option
to purchase all such Stock, at a price and upon terms of
payment hereinafter provided.
(1) Notice and Exercise. The Transferring Shareholder
shall give Bingham and the Other Shareholders written
notice of his or her intention to Transfer, and the
Other Shareholders, within five Business Days after
receiving that notice (the "NOTICE PERIOD"), shall
notify the Transferring Shareholder in writing as to
their intention with respect to the exercise of this
option and, if exercising this option, shall complete
the purchase of all such Stock for cash (or in other
good funds) within the Notice Period.
(2) Terms of Sale. The exact terms of the proposed
Transfer shall be fully and accurately communicated
to the Other Shareholders with the notice required
under this paragraph, and the same terms shall be
provided to the Other Shareholders if they exercise
their option to purchase (the "PROPOSED TERMS"). An
exact copy of all written agreements and memoranda of
the proposed Transfer shall be delivered to the Other
Shareholders together with a complete written summary
of their terms and all other terms and provisions
which have any material bearing thereon, regardless
of whether or not included in any such memorandum or
agreement. If the Transfer is to take place through a
market trade on a public exchange, the price shall be
the higher price of the Stock as of the close of
trading on the date when the notice is received by
Bober and Weber, or on the date of the Other
Shareholders' exercise of the foregoing option to
purchase. The market price shall be determined by
taking the average of the mean between the bid and
ask closing quotations (or, if available, the closing
prices) of such shares of Stock on the NASD Over the
Counter Bulletin Board (or an equivalent trading
market on which those shares are then traded).
(3) Sale To Outside Parties. If the Other Shareholder(s)
do not exercise their option and consummate their
purchase within the Notice Period, the Transferring
Shareholder shall be free to Transfer his or her
Stock pursuant to the terms and provisions of the
Proposed Terms, subject nevertheless to the Minimum
Required Holding and the Bingham Shareholder
Agreement.
(4) Registration and Postponement. In the event that any
shares of Stock that are subject to the foregoing
option are not then registered as provided under
Section 3 of the Bingham Shareholders Agreement, the
closing of the sale (but not the effective date for
valuation of the Share Price) shall be postponed, at
the option of a Majority in Interest of the Other
Shareholders exercising the option to purchase,
elected within 30 days after their exercise of their
option to purchase the shares of Stock, until those
shares become registered (as defined in Section
3.1[a] of that Agreement), but no shall such
postponement extend for longer than 120 days in the
aggregate.
C. Seizure Of Stock. The seizure or Transfer of any shares of
Stock of any Shareholder under any legal process whatsoever or
by operation of law or by court order, by or to any person or
by any receiver, trustee or officer appointed by any court to
take over the assets of that Shareholder shall constitute a
prohibited Transfer of that Stock (a "SEIZURE"). The person
Seizing those shares of Stock shall, for the purpose of this
Agreement, be subject to all of the restrictions in connection
with any proposed Transfer of those shares of Stock contained
in this Agreement as if a Shareholder originally joining in
the execution of this Agreement. The Other Shareholder(s)
shall be entitled to the same rights and options provided in
this
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Paragraph 7, except that their option to purchase may be
exercised at any time up to 90 days after the Seizure.
8. MAJORITY IN INTEREST. Wherever this Agreement calls for the
approval or vote of a "MAJORITY IN INTEREST" that vote, consent or approval
shall require the affirmative vote of Shareholders, the Other Shareholders, or
those Other Shareholders then exercising an option to purchase (as the case may
be), who in the aggregate own more than 50% of the Stock then subject to this
Agreement (in the case of any action not relating to the exercise of an option
to purchase Stock hereunder), or in connection with the exercise of any such
Option, 50% of the Stock then subject to this Agreement that is then held by or
for the benefit of the Other Shareholders (including holders who have received
their shares of Stock by way of a Permitted Transfer within the Shareholder
Group). However, no Shareholder shall have voting, consent or approval rights in
the event that he or she is in default of any provision of this Agreement.
9. AFTER-ACQUIRED STOCK. This Agreement shall be construed to
extend to all shares of Stock issued for the benefit of any of the Shareholders
as Initial Consideration, Special Consideration and/or Additional Consideration
under the Merger Agreement, and cover any additional shares of Stock in Bingham
which may hereafter be issued to or acquired by any Shareholder by reason of any
stock spilt, distribution or other transaction attributable to the Stock
originally obtained by the Shareholders. This Agreement shall not apply to
shares of the securities of Bingham acquired by any Shareholder in any public
market, through the exercise of options granted by the Companies or Bingham
and/or in a separate transaction with Bingham or any of its Affiliates.
10. SPECIFIC PERFORMANCE. The Shareholders acknowledge that they
will be irreparably damaged in the event this Agreement is not specifically
enforced, and it is the intention of the Shareholders that this Agreement be
enforceable by a decree of specific performance. That remedy, however, shall be
cumulative and not exclusive and shall be in addition to any other remedy which
the parties may have by law.
11. OTHER SHAREHOLDERS. Except where expressly stated otherwise in
this Agreement, wherever by the terms of this Agreement an option may be
exercised by more than one Shareholder, the following rules shall apply:
A. The Shareholders (the "OTHER SHAREHOLDERS") entitled to
exercise the option shall be those Shareholders whose shares
of Stock are not then subject to sale under that option; and
B. The option shall be exercised in proportion to the relative
holdings of the Stock by each such Other Shareholder on the
date of the first exercise thereof. However, if an Other
Shareholder does not exercise an option to acquire the full
amount of stock available to that Other Shareholder, the
remaining Other Shareholders shall have the right to acquire
those shares for which the option is unexercised (in similarly
proportionate amounts if there are two or more Other
Shareholders desiring to purchase).
In all events, each option granted by this Agreement must be exercised for all
shares available to the Other Shareholders (irrespective of their allocable
portions thereof) at the date of the exercise thereof.
12. CONTRIBUTION. Each Shareholder shall indemnify hold the other
Shareholders harmless from and against any and all claims, losses, damages,
liability, costs and expenses incurred by those other Shareholders by reason of
the a successful claim asserted by Bingham based on any untrue representation by
that Shareholder under Article 2 of the Merger Agreement with respect to which
that Shareholder had actual knowledge, or had actual knowledge of the potential
or probable loss, liability or damage without disclosing that knowledge to
Bingham or the other Shareholders on or prior to the Closing.
13. REQUIRED LEGEND. Simultaneously with the execution of this
Agreement, each Shareholder shall surrender all certificates of stock, except
those certificates representing shares which are or were acquired through
ordinary brokerage transactions, or under stock option plans instituted by
Bingham, and not
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pursuant to this Agreement, to Bingham for endorsement with the following
legend, which shall be conspicuously placed on such certificates:
"The sale, transfer, assignment, pledge, hypothecation or
other disposition of the shares represented by this
certificate is restricted by the provisions of the Bloomfield
Shareholders Agreement, dated as of March 5, 1998 (as it may
be amended from time to time), to which the the holder of this
certificate, among others, is Party, a copy of which may be
inspected at the principal office of Bingham Financial
Services Corporation. The provisions of the Bloomfield
Shareholders Agreement are incorporated herein by reference."
All certificates of stock issued to or acquired by any such Shareholder after
the date of this Agreement, except certificates representing shares which are or
were acquired through ordinary brokerage transactions and not pursuant to this
Agreement or under stock option plans instituted by Bingham, shall also bear the
foregoing legend; provided, however, that Bingham shall remove the required
legend from any shares transferred to a third party (i.e., a party other than a
Shareholder or Permitted Transferee) as permitted in this Agreement, so that
such transferee shall not be subject to the requirements contained in this
Agreement.
14. WAIVERS AND AMENDMENTS. With the written consent of a Majority
in Interest of the Shareholders, the obligations of the Shareholders under this
Agreement that are not controlled by the Bingham Shareholders Agreement may be
waived (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely. Upon
the effectuation of each such waiver, consent, agreement of amendment or
modification, the Company promptly shall give written notice thereof to the
record holders of the then outstanding Common Stock. However, neither this
Agreement nor any of its provision may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of that change, waiver, discharge or termination is
sought, except to the extent provided in this Paragraph14.
15. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Michigan as such laws are applied to
agreements between Michigan residents entered into and to be performed entirely
within Michigan.
16. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
17. ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
18. NOTICES, ETC. Notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the second day following mailing by registered
air mail, postage prepaid, addressed to the Shareholders, as indicated on
Schedule 1 attached to the Bingham Shareholders Agreement, or at such other
address as a Shareholder shall have furnished to Bingham for notices under that
Agreement, in accordance with the terms of that Agreement. Any such notice to
Bingham of change of address shall be simultaneously sent to all Shareholders
under this Agreement.
19. DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Shareholder under this Agreement shall
impair any right, power or remedy of that Shareholder nor shall it be construed
to be a waiver of any breach or default, or an acquiescence therein, or in any
similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Shareholder of any breach or default
under this Agreement, or any waiver on the part of any Shareholder of any
provisions or conditions of this
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Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
20. SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall be modified in such manner as to be
valid, legal, and enforceable but so as to most nearly retain the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
21. TITLES AND SUBTITLES. The titles and subtitles of this
Agreement are intended for reference and shall not by themselves determine the
construction or interpretation of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
23. EXPENSES. Each Shareholder shall pay his or her own costs and
expenses in connection with the performance of this Agreement.
In witness whereof, the parties have caused this Shareholders Agreement
to be executed as of the day and year first above written.
/s/ DANIEL E. BOBER /s/ CREIGHTON J. WEBER
- ---------------------------------- -----------------------------
DANIEL E. BOBER CREIGHTON J. WEBER
/s/ JOSEPH DROLSHAGEN /s/ JAMES BENNETT
- ---------------------------------- -----------------------------
JOSEPH DROLSHAGEN JAMES BENNETT
/s/ PATRICIA JORGENSEN /s/ DEBORAH JENKINS
- ---------------------------------- -----------------------------
PATRICIA JORGENSEN DEBORAH JENKINS
/s/ LYNNE BASZCZUK /s/ JAMES A. SIMPSON
- ---------------------------------- -----------------------------
LYNNE BASZCZUK JAMES A. SIMPSON
/s/ KATHERYNE L. ZELENOCK /s/ JEFFREY C. URBAN
- ---------------------------------- -----------------------------
KATHERYNE L. ZELENOCK JEFFREY C. URBAN
8
<PAGE> 1
EXHIBIT 5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of
March 5, 1998 by and among BINGHAM FINANCIAL SERVICES CORPORATION, a Michigan
corporation ("Parent"), DANIEL E. BOBER, a shareholder of Bloomfield Acceptance
Company, L.L.C., a Michigan limited liability company ("BAC") and Bloomfield
Servicing Company, L.L.C., a Michigan limited liability company ("BSC"),
CREIGHTON J. WEBER, a shareholder of BAC and BSC ("Weber"), JOSEPH DROLSHAGEN, a
shareholder of BAC and BSC ("Drolshagen"), JAMES BENNETT, a shareholder of BAC
and BSC ("Bennett"), PATRICIA JORGENSEN, a shareholder of BAC and BSC
("Jorgensen"), DEBORAH JENKINS, a shareholder of BAC and BSC, LYNNE BASZCZUK, a
shareholder of BAC ("Baszczuk"), JAMES A. SIMPSON, a shareholder of BAC and BSC
("Simpson"), KATHERYNE L. ZELENOCK, a shareholder of BAC and BSC ("Zelenock")
and JEFFREY C. URBAN, a shareholder of BAC and BSC ("Urban") (each a
"Shareholder" and collectively, the "Shareholders"), and
________________________ as escrow agent ("Escrow Agent"). All capitalized terms
used, but not defined, in this Agreement have the same meanings as in the
Agreement and Plan of Merger (the "Merger Agreement"), dated
February 17, 1998, of which Parent and the Shareholders are parties to,
a copy of which (without Exhibits or Schedules) is attached to this Agreement
for reference purposes only.
RECITALS:
A. Pursuant to the Merger Agreement, BAC Acquiring Sub will merge with
and into BAC, with BAC's shareholders receiving common stock of Parent. BSC
Acquiring Corp. will merge with and into BSC, with BSC's shareholders receiving
common stock of Parent.
B. The Merger Agreement contemplates that certificates representing
shares of Parent common stock are to be held in escrow under this Agreement and
to be disbursed pursuant to this Agreement.
C. At the Closing of the transactions contemplated in the Merger
Agreement, 272,727 shares of Parent common stock constituting the Initial
Consideration, will be deposited into escrow to be held in trust by the Escrow
Agent for a period of two years, to secure the Shareholders' indemnification
obligations to Parent under the Merger Agreement.
D. Parent and the Shareholders have agreed to execute and deliver this
Agreement in order to more fully and completely document the understandings
generally described in Recitals A through C above.
NOW, THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the
undersigned agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Parent and the Shareholders hereby appoint
_______________________ as Escrow Agent, to hold the Escrow Shares, as
defined, in trust for the benefit of the appropriate party and to act
in accordance with the terms and conditions set forth in this
Agreement, and Escrow Agent hereby accepts such appointment in
accordance with such terms and conditions.
2. DEPOSITS INTO ESCROW. Contemporaneously with the execution and delivery
of this Agreement, the Shareholders have deposited certificates
representing 272,727 shares of
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Parent common stock (the "Escrow Shares") with Escrow Agent (the
"Indemnity Amount"). Escrow Agent hereby acknowledges receipt of the
Escrow Shares, and Escrow Agent further agrees to hold and disburse the
Escrow Shares in accordance with the terms of this Agreement.
3. ADDITIONAL DEPOSITS INTO ESCROW. In the event that Parent issues the
Shareholders shares of Parent common stock in respect of the Additional
Consideration (the "Additional Shares"), at a time when the Escrow
Shares are still subject to this Agreement, such Additional Shares will
be deposited into escrow with the Escrow Agent and will be part of the
Escrow Shares, subject to the terms and provisions of this Agreement,
as if the Additional Shares had been deposited on the date of this
Agreement. The Escrow Agent agrees to hold and disburse the Additional
Shares as Escrow Shares in accordance with the terms of this Agreement.
4. DISBURSEMENTS FROM ESCROW.
4.1 Indemnity Amount.
4.11 From time-to-time after the date of this Agreement,
Parent may send Escrow Agent a notice (each, a "Claim
Notice") that it is entitled to indemnification
pursuant to the Merger Agreement. Each Claim Notice
shall set forth the amount which Parent contends it
is owed (or, if such amount cannot be determined
presently, the reasonably estimated amount which
Parent could be owed) and, in reasonable specificity,
the basis for such contention.
4.12 The Shareholders shall be entitled to provide Escrow
Agent with a written objection (each, a "Claim Notice
Objection") in respect of each Claim Notice. Each
Claim Notice Objection shall state that the
Shareholders dispute the facts set forth in the Claim
Notice in question in good faith and also shall state
the basis for such disputes.
4.13 If Escrow Agent does not receive a Claim Notice
Objection from the Shareholders in respect of a
particular Claim Notice on or before the thirtieth
(30th) calendar day after the date on which such
Claim Notice was given, Escrow Agent shall promptly
pay the amount specified in such Claim Notice to
Purchaser out of the Indemnity Amount by delivering
to Parent that portion of the Escrow Shares that is
equal in value to the amount specified in the claim
notice, determined in accordance with Section 4.16.
If the Claim Notice in question states that the
amount owed cannot then be determined, Escrow Agent
shall not make any payment until Parent issues a
follow-up Claim Notice to Escrow Agent in respect of
such claim setting forth the actual amount due, and
if Escrow Agent does not receive a Claim Notice
Objection from the Shareholders on or before the
fifteenth (15th) day after the date on which such
follow-up Claim Notice was given, Escrow Agent shall
then pay Parent the actual amount due.
4.14 If Escrow Agent receives a Claim Notice Objection
from the Shareholders in respect of a particular
Claim Notice on or before the thirtieth (30th) day
(the fifteenth (15th) day, in the case of a follow-up
Claim Notice, as provided in Section 4.13 above)
after the date on which such Claim Notice was given,
Escrow Agent shall have no obligation to disburse the
amount specified in such Claim Notice except on
receipt of a joint written direction signed by
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both Parent and the Shareholders or in accordance
with an order, judgment or award of a panel of
arbitrators or a court of competent jurisdiction.
4.15 Parent may not submit a Claim Notice after the second
(2nd) anniversary of the date of this Agreement (the
"Escrow Termination Date"). Promptly after the Escrow
Termination Date, if no unresolved claims filed by
Parent remain outstanding, the Escrow Agent shall
release the remaining Escrow Shares to the
Shareholders. If at the Escrow Termination Date,
indemnification claims are outstanding which equal or
exceed the fair market value of the Escrow Shares,
the Escrow Shares shall remain in escrow until the
final resolution of the claim or claims. If at the
Escrow Termination Date, indemnifiation claims are
outstanding and the value of the Escrow Shares
exceeds such indemnification claims, the Shareholders
have the option to request a release of a portion of
the Escrow Shares (the "Option"). In order to
exercise the Option, D.B. and C.W., as
representatives of the Shareholders, shall deliver a
written request to Escrow Agent in the form attached
hereto as Exhibit 4.15 (the "Request"). Upon receipt
of the Request, the Escrow Agent may release an
amount of Escrow Shares to the Shareholders on a pro
rata basis (the "Release Shares"), provided however,
that the Escrow Agent must retain in escrow
sufficient shares of Parent common stock the fair
market value of which is at least three (3) times the
amount of the indemnification claim or claims
outstanding (the "Reserve Shares"). Notwithstanding
Section 8.6(b) of the Merger Agreement, if the
Shareholders exercise the Option and receive the
Release Shares, and subsequently the Reserve Shares
are insufficient to cover the indemnification claims
as finally determined, the Shareholders will be
jointly and severally liable to Parent for an amount
equal to what the fair market value of the Release
Shares was on the Escrow Termination Date. Parent may
enforce this liability or obligation by any action or
proceeding seeking a money judgment against any one
or more of the Shareholders.
4.16 The Escrow Shares will be valued by taking the
average of the mean between the bid and ask closing
quotations (or, if available, the closing prices) of
such shares on the NASD Over the Counter Bulletin
Board (or equivalent trading market on which the
shares are then traded) for the last ten (10) trading
days prior to the date on which the Escrow Agent is
authorized to release the Escrow Shares or the Escrow
Termination Date in the case of the Release Shares.
5. FUTURE RECEIPTS. If the Shareholders shall receive or become entitled
to receive any:
(a) stock certificate(s) issued in respect of the Escrow
Shares, including, without limitation, any certificate representing a
stock dividend or payable in respect of the Escrow Shares or issued in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock
split, spin-off or split-off;
(b) option, warrant or right, whether issued as an addition
to, in substitution or in exchange for, or on account of, any of the
Escrow Shares; or
(c) dividends or distributions on the Escrow Shares payable
other than in cash, including securities issued by other than Parent;
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The Shareholders shall accept the same and shall deliver the same forthwith to
Escrow Agent, in the exact form received with, as applicable, the Shareholders'
endorsement when necessary or appropriate stock powers duly executed in blank.
Any property received by Escrow Agent hereunder shall be held by Escrow Agent
pursuant to the terms of this Agreement as additional security for the
indemnification obligations.
6. CASH DIVIDENDS AND DISTRIBUTIONS. The Shareholders acknowledge that any
cash dividends or distributions on the Escrow Shares will be delivered
directly to Escrow Agent and shall be held by Escrow Agent pursuant to
the terms of this Agreement as additional security for the
indemnification obligations of the Shareholders.
7. VOTING AND OTHER RIGHTS. So long as no Claim Notice Objection is
outstanding, the Shareholders shall be entitled to exercise any and all
voting and other consensual rights with respect to the Escrow Shares
for any purpose not inconsistent with the terms of this Agreement.
8. EXCULPATION AND INDEMNIFICATION OF ESCROW AGENT.
8.1 Escrow Agent will have no duties or responsibilities other
than those expressly set forth herein. Escrow Agent will be
under no liability to anyone by reason of any failure on the
part of any party hereto (other than Escrow Agent) or any
maker, endorser or other signatory of any document to perform
such person's or entity's obligations under any such document.
Except to the extent specifically provided for in this
Agreement, Escrow Agent is not obligated to render any
statements or notices of non-performance hereunder to any
party hereto but may, in its discretion, inform any party
hereto of any matters pertaining to this Agreement, provided
such information is also given to the other parties to this
Agreement and their counsel. Escrow Agent shall not be charged
with knowledge of any fact, including but not limited to
performance or non-performance of any condition herein, unless
it has actually received written notice thereof. Except for
this Agreement and the instructions to Escrow Agent pursuant
to the terms of this Agreement, Escrow Agent will not be
obligated to recognize any agreement between any or all of the
parties hereto, notwithstanding its knowledge thereof.
8.2 In the event of any disagreement or the presentation of
adverse claims or demands in connection with the Escrow
Shares, Escrow Agent shall, at its option, be entitled to (i)
implead the Escrow Shares in any court having jurisdiction
thereof; or (ii) refuse to comply with any such claims or
demands during the continuance of such disagreement and may
refrain from delivering any item affected thereby. As a result
of such action or inaction, Escrow Agent shall not become
liable to Parent or the Shareholders, or to any other person,
due to its failure to comply with any such adverse claim or
demand. Escrow Agent shall be entitled to continue, without
liability, to refrain and refuse to act:
8.21 Until all the rights of the adverse claimants have
been finally adjudicated by a court or panel of
arbitrators having jurisdiction over the parties and
the items affected thereby, after which time the
Escrow Agent shall be entitled to act in conformity
with such adjudication; or
8.22 Until all differences shall have been adjusted by
agreement and Escrow Agent shall have been notified
thereof and shall have been directed in
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writing signed jointly or in counterpart by Parent
and the Shareholders and by all persons making
adverse claims or demands, at which time Escrow Agent
shall be protected in acting in compliance therewith.
8.3 Escrow Agent may rely upon any written notice, request,
waiver, consent, certificate, receipt, authorization, power of
attorney or other instrument or document which Escrow Agent in
good faith believes to be genuine and to be what it purports
to be. Escrow Agent may rely on D.B.
and C.W. to serve as representatives of the Shareholders.
8.4 The bankruptcy, insolvency or absence of any of the parties to
this Agreement shall not affect or prevent performance by the
Escrow Agent of its obligations and instructions hereunder.
8.5 Parent and the Shareholders, jointly and severally, shall
indemnify and hold harmless Escrow Agent from and against any
fees, costs, expenses (including reasonable counsel fees and
disbursements), claims, damages or losses suffered by Escrow
Agent in connection with this Agreement, the services of
Escrow Agent hereunder, or the filing by Escrow Agent of any
action related to this Agreement, other than as a result of
Escrow Agent's gross negligence or willful misconduct. As
between Parent and the Shareholders, the party, if any, which
unreasonably causes the Escrow Agent to incur expenses shall
bear those expenses. If neither party is at fault, the costs
shall be paid one-half by Parent and one-half by the
Shareholders.
9. REIMBURSEMENT FOR OUT-OF-POCKET EXPENSES OF ESCROW AGENT; FEES.
9.1 Escrow Agent shall be entitled to reimbursement from Parent
and the Shareholders for out-of-pocket expenses paid or
incurred by it in the administration of its duties hereunder,
including, but not limited to, all reasonable counsel,
advisors' and agents' fees and disbursements (except those for
which indemnification would not be available under Section 8.5
hereof) and all taxes or other governmental charges. Escrow
Agent is hereby granted a lien on, and security interest in,
the Escrow shares to secure its rights to payment or
reimbursement under this Agreement and may, without notice,
set-off against any and all amounts held by it hereunder, and
retain for its own account, the full amount of any and all
fees, costs, losses, liabilities, damages and expenses. All
such expenses shall be paid one-half by Parent and one-half by
the Shareholders. Escrow Agent shall provide copies of
invoices and the like evidencing such expenses to both Parent
and the Shareholders
9.2 Escrow Agent's fees for serving as Escrow Agent shall be
payable one-half by Parent and one-half by the Shareholders.
10. TERMINATION OF AGREEMENT. This Agreement will terminate on the final
disposition to Parent or the Shareholders of the Escrow Shares in
accordance herewith, except for the respective rights and obligations
of Escrow Agent and the other parties hereto under Sections 8, 9 or 12
hereof, which will survive such disposition.
11. RESIGNATION OF ESCROW AGENT.
11.1 The Escrow Agent may resign as such following the giving of thirty
(30) days' prior written notice to the other parties hereto. Similarly,
the Escrow Agent may be removed and replaced following the giving of
thirty (30) days' prior written notice to the Escrow Agent
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by all of the other parties hereto. In either event, the duties of the
Escrow Agent shall terminate thirty (30) days after the date of such
notice (or as of such earlier date as may be mutually agreeable), and
the Escrow Agent shall then, upon payment of its fees, costs and
expenses, deliver the Escrow Shares to a successor Escrow Agent as
shall be appointed by the other parties hereto as evidenced by a
written notice filed with the Escrow Agent.
11.2 If the other parties hereto are unable to agree upon a
successor prior to the expiration of thirty (30) days
following the date of the notice of resignation or removal,
the then acting Escrow Agent may petition any court of
competent jurisdiction for the appointment of a successor
Escrow Agent or other appropriate relief; and any such
resulting appointment shall be binding upon all of the parties
hereto.
11.3 Upon payment of the fees, costs and expenses of the Escrow
Agent, and acknowledgment by any successor Escrow Agent of the
receipt of the Escrow Shares, the then acting Escrow Agent
shall be fully released and relieved of all further duties,
responsibilities, and obligations under this Agreement.
12. RECORDS. Escrow Agent will maintain accurate records of all
transactions hereunder. Promptly after the termination of this
Agreement, and promptly after the end of each calendar month prior to
such termination, Escrow Agent shall provide Parent and the
Shareholders with a complete copy of such records, certified by Escrow
Agent to be a monthly statement showing all transactions in the account
established by this Agreement. The authorized representatives of Parent
and the Shareholders will also have access to such records at all
reasonable times during normal business hours upon reasonable notice to
Escrow Agent.
13. NOTICES. Any and all notices, requests, demands and other
communications permitted under or required pursuant to this Agreement
(each, a "notice") shall be in writing and shall be deemed given if
personally delivered, faxed (to be followed by hard copy delivered in
one of the manners contemplated in this Section 13) or mailed, postage
prepaid, certified or registered mail, return receipt requested, to the
parties at the addresses or fax numbers set forth below, or at such
other addresses as they may indicate by written notice given as
provided in this Section 13:
If to Shareholders: With a required copy to:
Daniel E. Bober Simpson Zelenock, P.C.
260 E. Brown Street, Suite 350 260 E. Brown Street, Suite 300
Birmingham, MI 48009 Birmingham, MI 48009
Fax: (248) 644-5760 Fax: (248) 647-2776
Attention: James Simpson
If to Parent: With a required copy to:
31700 Middlebelt Road, Suite 125 Jaffe, Raitt, Heuer & Weiss
Farmington Hills, MI 48334 One Woodward Avenue, Suite 2400
Fax: (248) 932-3072 Detroit, MI 48226
Attention: Jeffrey P. Jorissen Fax: (313) 961-8358
Attention: Peter Sugar
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<PAGE> 7
If to Escrow Agent:
______________________________
______________________________
______________________________
______________________________
Parent and the Shareholders each shall provide the other with a copy of any
notices given to Escrow Agent.
14. PROHIBITION AGAINST SECURITY INTERESTS. Parent and the Shareholders
hereby covenant and warrant that each shall keep its respective
interests in this Agreement and all amounts, sums, monies, and deposits
to be made pursuant hereto free from all liens, claims, encumbrances
and third-party interests of any kind whatsoever without the prior
written consent of the other party. In addition, Purchaser and the
Shareholders hereby agree that neither party shall allow its respective
interests in this Agreement and all amounts, sums, monies and deposits
to be made pursuant hereto to be pledged, hypothecated, mortgaged or
otherwise used as collateral or security without the prior written
consent of the other party. The Shareholders covenant and warrant that
while the Escrow Shares are subject to this Agreement, the Shareholders
will not sell, convey or otherwise dispose of any of the Escrow Shares
or any interest therein, or create, incur, or permit to exist on any
pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever in or with respect to any of the Escrow Shares except for
that created hereby. The Shareholders warrant, and will at their own
expense defend, Parent's right, title and interest in and to the Escrow
Shares against the claims of any person.
15. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
more than one counterpart, all of which shall together constitute a
single agreement. The parties may execute more than one copy of this
Agreement, in which case each executed copy shall constitute an
original. Copies (whether facsimile, photostatic or otherwise) of
signatures to this Agreement shall be deemed to be originals and may be
relied on to the same extent as the originals.
16. ASSIGNMENT AND MODIFICATION. This Agreement and the rights and
obligations hereunder of any of the parties hereto may not be assigned
without the prior written consent of the other parties hereto having
been obtained. Subject to the foregoing, this Agreement will be binding
upon and inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns. No other person will
acquire or have any rights under, or by virtue of, this Agreement. This
Agreement may be changed or modified only in writing signed by all of
the parties hereto. In the event that there is a conflict between the
terms and conditions of the Purchase Agreement and the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall control.
17. GOVERNING LAW. The parties agree that all actions or proceedings
arising in connection with this Agreement and the instruments,
agreements and documents executed pursuant to the terms of this
Agreement shall be tried, litigated and arbitrated only in courts of
the United States located in the Eastern District of Michigan, the
Oakland County, Michigan Circuit Court, or the office of the American
Arbitration Association located nearest Southfield, Michigan The
parties each waive any objection to such venue and any claim that such
action has been brought in an inconvenient forum. The provisions of
this Section 13 shall survive the termination of this Agreement.
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<PAGE> 8
18. HEADINGS. Headings in this Agreement are for the purposes of reference
only and shall not limit or otherwise affect any of the terms hereof.
19. SHAREHOLDER REPRESENTATIVES. The Shareholders, by execution of this
Agreement hereby grant to D.B. and C.W. the authority to act as
representatives for and on behalf of all of the Shareholders, including
but not limited to those actions to be taken with respect to Section
4.15. Escrow Agent and Parent are entitled to rely on D.B. and C.W. as
the representatives of the Shareholders.
IN WITNESS WHEREOF, the parties have duly executed this Escrow
Agreement as of March 5, 1998.
BINGHAM FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By: /s/ Jeffrey P. Jorissen
------------------------------------
Jeffrey P. Jorissen
Its: President, Chief Executive Officer and Chief
Financial Officer
/s/ Daniel E. Bober /s/ Patricia Jorgensen
_________________________ ___________________________
DANIEL E. BOBER PATRICIA JORGENSEN
/s/ Creighton J. Weber /s/ Deborah Jenkins
_________________________ ___________________________
CREIGHTON J. WEBER DEBORAH JENKINS
/s/ Joseph Drolshagen /s/ Lynne Baszczuk
_________________________ ___________________________
JOSEPH DROLSHAGEN LYNNE BASZCZUK
/s/ James Bennett /s/ James A. Simpson
_________________________ ___________________________
JAMES BENNETT JAMES A. SIMPSON
/s/ Katheryne L. Zelenock /s/ Jeffrey C. Urban
_________________________ ___________________________
KATHERYNE L. ZELENOCK JEFFREY C. URBAN
________________________________, AS ESCROW AGENT
By:_____________________________
Its:____________________________
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<PAGE> 1
EXHIBIT 6
SPECIAL CONSIDERATION ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into as of
March 5, 1998 by and among BINGHAM FINANCIAL SERVICES CORPORATION, a Michigan
corporation ("Bingham"), JAMES A. SIMPSON, a shareholder of BLOOMFIELD
ACCEPTANCE COMPANY, L.L.C., a Michigan limited liability company ("BAC") and
BLOOMFIELD SERVICING COMPANY, L.L.C, a Michigan limited liability company
("BSC") ("Simpson"), KATHERYNE L. ZELENOCK, a shareholder of BAC and BSC
("Zelenock") AND JEFFREY C. URBAN, a shareholder of BAC and BSC ("Urban"), (each
a "Shareholder" and collectively, the "Shareholders"), and NBD BANK, a Michigan
banking corporation, as escrow agent ("Escrow Agent"). All capitalized terms
used, but not otherwise defined, in this Agreement have the same meanings as in
the Agreement and Plan of Merger (the "Merger Agreement"), dated February 17,
1998, to which Bingham and the Shareholders are parties, a copy of which
(without Exhibits or Schedules) is attached to this Agreement for reference
purposes only.
RECITALS:
A. Pursuant to the Merger Agreement, BAC Acquiring Sub will merge with
and into BAC, with BAC 's shareholders receiving common stock of Bingham. BSC
Acquiring Sub will merge with and into BSC, with BSC's shareholders receiving
common stock of Bingham.
B. Pursuant to the Merger Agreement, Bingham will issue 9,091 shares of
Bingham common stock to the Shareholders in respect of the Special
Consideration, which shares will be deposited into escrow to be held in trust by
the Escrow Agent for a period of three (3) years in connection with the
Shareholders' obligations under the Technology Agreement between BAC, BSC,
Systems/Software Solutions, Inc., a Michigan corporation ("S3I"), Simpson
Zelenock, P.C. (the "Firm") and the Shareholders, dated as of January 29, 1998.
C. The Shareholders have developed an integrated system for processing
applications and commitments for and closing commercial mortgage loans,
particularly those intended for securitization (the "System"). The Shareholders
estimate that approximately one-half of the System relates to traditional legal
functions associated with commercial lending (the "Legal IP") and one- half of
the System relates to the financial aspects of commercial lending (the
"Financial IP").
D. The Shareholders have assigned all right, title and interest in and
to the Legal IP to S3I, and have assigned all right, title and interest in and
to the Financial IP to BAC and BSC. BAC and BSC have assigned all right, title
and interest in and to the Financial Software to S3I;
E. The parties have entered into the Technology Agreement to establish
their respective rights and responsibilities regarding the System.
F. Bingham and the Shareholders have agreed to execute and deliver this
Agreement in order to more fully and completely document the understandings
generally described in Recitals A through E above.
NOW, THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the
undersigned agree as follows:
1. APPOINTMENT OF ESCROW AGENT. Bingham and the Shareholders hereby
appoint NBD Bank as Escrow Agent, to hold the Escrow Shares, as
defined, in trust for the benefit of the
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appropriate party and to act in accordance with the terms and
conditions set forth in this Agreement, and Escrow Agent hereby accepts
such appointment in accordance with such terms and conditions.
2. DEPOSITS INTO ESCROW. Contemporaneously with the execution and delivery
of this Agreement or upon issuance by Bingham's transfer agent, the
Shareholders have deposited certificates representing 9,091 shares of
Bingham common stock (the "Escrow Shares") with Escrow Agent and
Assignments Separate from Certificate in the form attached hereto as
Exhibit "A". Escrow Agent hereby acknowledges receipt of the Escrow
Shares, and Escrow Agent further agrees to hold and disburse the Escrow
Shares in accordance with the terms of this Agreement.
3. ADDITIONAL DEPOSITS INTO ESCROW.
3.1 If the Shareholders shall receive or become entitled to receive
any:
(a) stock certificate(s) issued in respect of the Escrow
Shares, including, without limitation, any certificate representing a
stock dividend or payable in respect of the Escrow Shares or issued in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock
split, spin-off or split-off;
(b) option, warrant or right, if issued in substitution or in
exchange for, or on account of, any of the Escrow Shares; or
(c) dividends or distributions on the Escrow Shares payable
other than in cash, including securities issued by other than Bingham;
the Shareholders shall accept the same and shall deliver the
same forthwith to Escrow Agent, in the exact form received
with, as applicable, the Shareholders' endorsement when
necessary or appropriate stock powers duly executed in blank.
Any property received by Escrow Agent hereunder shall be held
by Escrow Agent pursuant to the terms of this Agreement as
additional security for the Shareholders' obligations under
the Technology Agreement.
3.2 The Shareholders acknowledge that any cash dividends or
distributions on the Escrow Shares will be delivered directly
to Escrow Agent and shall be held by Escrow Agent pursuant to
the terms of this Agreement as additional security for the
Shareholders' obligations under the Technology Agreement. All
such funds received by the Escrow Agent to be retained under
the provisions of this Section 3.2 (the "Escrow Funds") shall
be invested from time to time, to the extent possible, in
United States Treasury Bills having a remaining maturity of 90
days or less and repurchase obligations secured by such United
States Treasury Bills, with any remainder being deposited and
maintained in a money market deposit account with Escrow
Agent, until disbursement of all such Escrow Funds. Escrow
Agent is authorized to liquidate in accordance with its
customary procedures any portion of the Escrow Funds
consisting of investments to provide for payments required to
be made under this Agreement. Uninvested funds held hereunder
shall not earn or accrue interest.
3.3 All additional deposits into escrow pursuant to this Section 3
shall together with the Escrow Shares be referred to
collectively as the "Escrow Assets".
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<PAGE> 3
4. DISBURSEMENTS FROM ESCROW.
4.1 Upon receipt of an authorization letter from Bingham in
accordance with the terms of Section 4.2 and in substantially
the form attached hereto as Exhibit 4.1 (the "Notice"), Escrow
Agent is authorized to disburse the Escrow Assets to the
Shareholders, 60% to Simpson, 30% to Zelenock and 10% to
Urban, in accordance with the following schedule:
(a) 33 1/3% of the Escrow Assets one (1) year after the
date of this Agreement (the "Escrow Date");
(b) 33 1/3% of the Escrow Assets two (2) years after the
Escrow Date; and
(c) 33 1/3% of the Escrow Assets three (3) years after
the Escrow Date.
4.2 In order for the Shareholders to receive the Escrow Assets,
the Technology Agreement must be in full force and effect and
Simpson and Zelenock shall not be in default of Section 10 of
the Technology Agreement. Upon the Shareholders' request,
Bingham shall determine if the Shareholders have met the
foregoing requirements and deliver the Notice to Escrow Agent
which will state whether the Escrow Agent is authorized to
disburse the Escrow Assets to the Shareholders.
4.3 In the event that a Shareholder is no longer a party to the
Technology Agreement on the date when the Escrow Assets are
authorized to be disbursed, that portion of the Escrow Assets
such Shareholder would have received shall be distributed to
the remaining Shareholders, in accordance with their
respective percentage interests in the Escrow Assets.
4.4 In the event the Technology Agreement is no longer in full
force and effect or Simpson and Zelenock are in default under
Section 10 of the Technology Agreement, pursuant to Section
4.2, Bingham shall deliver the Notice to Escrow Agent
instructing Escrow Agent to release the remaining Escrow
Assets to Bingham.
4.5 Required Legend. Simultaneously with the release (hereafter a
"Release") to a Shareholder of any of the Escrow Shares from
this Agreement, the certificate or certificates with respect
to those Escrow Shares shall be delivered to Bingham for
endorsement with the following legend, which shall be
conspicuously placed on such certificates prior to their
return by Bingham to the applicable Shareholders:
"The sale, transfer, assignment, pledge, hypothecation or
other disposition of the shares represented by this
certificate is restricted by the provisions of the Bloomfield
Shareholders Agreement, dated as of March 5, 1998 (as it may
be amended from time to time), to which the holder of this
certificate, among others, is Party, a copy of which may be
inspected at the principal office of Bingham Financial
Services Corporation. The provisions of the Bloomfield
Shareholders Agreement are incorporated herein by reference."
4.6 Bingham shall determine whether the Technology Agreement is in
full force and effect and whether Simpson and Zelenock are in
default of Section 10 of the Technology Agreement.
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<PAGE> 4
5. VOTING AND OTHER RIGHTS. The Shareholders shall be entitled to exercise
any and all voting and other consensual rights with respect to the
Escrow Shares.
6. EXCULPATION AND INDEMNIFICATION OF ESCROW AGENT.
6.1 Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct. Escrow Agent will have no
duties or responsibilities other than those expressly set
forth herein. Escrow Agent will be under no liability to
anyone by reason of any failure on the part of any party
hereto (other than Escrow Agent) or any maker, endorser or
other signatory of any document to perform such person's or
entity's obligations under any such document. Except to the
extent specifically provided for in this Agreement, Escrow
Agent is not obligated to render any statements or notices of
non-performance hereunder to any party hereto but may, in its
discretion, inform any party hereto of any matters pertaining
to this Agreement, provided such information is also given to
the other parties to this Agreement and their counsel. Escrow
Agent shall not be charged with knowledge of any fact,
including but not limited to performance or non-performance of
any condition herein, unless it has actually received written
notice thereof. Except for this Agreement and the instructions
to Escrow Agent pursuant to the terms of this Agreement,
Escrow Agent will not be obligated to recognize any agreement
between any or all of the parties hereto, notwithstanding its
knowledge thereof. Without limiting the foregoing, Escrow
Agent shall in no event be liable in connection with its
investment or reinvestment of any cash held by it hereunder in
good faith, in accordance with the terms hereof, including,
without limitation, any liability for any delays (not
resulting from its gross negligence or willful misconduct) in
the investment or reinvestment of any Escrow Funds, or any
loss of interest incident to any such delays.
6.2 In the event of any disagreement or the presentation of
adverse claims or demands in connection with the Escrow
Assets, Escrow Agent shall, at its option, be entitled to (i)
implead the Escrow Assets in any court having jurisdiction
thereof; or (ii) refuse to comply with any such claims or
demands during the continuance of such disagreement and may
refrain from delivering any item affected thereby. As a result
of such action or inaction, Escrow Agent shall not become
liable to Bingham or the Shareholders, or to any other person,
due to its failure to comply with any such adverse claim or
demand. Escrow Agent shall be entitled to continue, without
liability, to refrain and refuse to act:
6.21 Until all the rights of the adverse claimants have
been finally adjudicated by a court or panel of
arbitrators having jurisdiction over the parties and
the items affected thereby, after which time the
Escrow Agent shall be entitled to act in conformity
with such adjudication; or
6.22 Until all differences shall have been adjusted by
agreement and Escrow Agent shall have been notified
thereof and shall have been directed in writing
signed jointly or in counterpart by Bingham and the
Shareholders and by all persons making adverse claims
or demands, at which time Escrow Agent shall be
protected in acting in compliance therewith.
6.3 Escrow Agent shall be entitled to rely upon any order,
judgment, certification, demand, notice, instrument or other
writing delivered to it hereunder without being required to
determine the authenticity or the correctness of any fact
stated therein or
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<PAGE> 5
the propriety or validity of the service thereof. Escrow Agent
may act in reliance upon any instrument or signature believed
by it to be genuine and may assume that the person purporting
to give receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been
duly authorized to do so. Escrow Agent may conclusively
presume that the undersigned representative of any party
hereto which is an entity other than a natural person has full
power and authority to instruct Escrow Agent on behalf of that
party unless written notice to the contrary is delivered to
Escrow Agent. Escrow Agent may act pursuant to the advice of
counsel with respect to any matter relating to this Agreement
and shall not be liable for any action taken or omitted by it
in good faith in accordance with such advice.
6.4 The bankruptcy, insolvency or absence of any of the parties to
this Agreement shall not affect or prevent performance by
Escrow Agent of its obligations and instructions hereunder.
6.5 Except with respect to claims based upon such gross negligence
or willful misconduct that are successfully adjudicated
against Escrow Agent, Bingham and the Shareholders, jointly
and severally, shall indemnify and hold harmless Escrow Agent
from and against any fees, costs, expenses (including
reasonable counsel fees and disbursements), claims, damages or
losses suffered by Escrow Agent in connection with this
Agreement, the services of Escrow Agent hereunder, or the
filing by Escrow Agent of any action related to this
Agreement, other than as a result of Escrow Agent's gross
negligence or willful misconduct. As between Bingham and the
Shareholders, the party, if any, which unreasonably causes the
Escrow Agent to incur expenses shall bear those expenses. If
neither party is at fault, the costs shall be paid one-half by
Bingham and one-half by the Shareholders (pro-rata among them
in proportion to their respective shares of the Escrow Shares
held hereunder when those costs were first incurred).
6.6 Escrow Agent does not have any interest in the Escrow Assets
deposited hereunder but is serving as escrow holder only and
having only possession thereof. Any payments of income from
this escrow shall be subject to withholding regulations then
in force with respect to United States taxes. The parties
hereto will provide Escrow Agent with appropriate Internal
Revenue Service Forms W-9 for tax identification number
certification, or non-resident alien certifications. This
Section shall survive notwithstanding any termination of this
Agreement or the resignation of Escrow Agent.
6.7 Escrow Agent makes no representation as to the validity,
value, genuineness or the collectibility of any security or
other document or instrument held by or delivered to it.
6.8 Escrow Agent shall not be called upon to advise any party as
to the wisdom in selling or retaining or taking or refraining
from any action with respect to any securities or other
property deposited hereunder.
6.9 Bingham and the Shareholders hereby authorize Escrow Agent,
for any securities held hereunder, to use the services of any
United States central securities depository it reasonably
deems appropriate, including, without limitation, the
Depository Trust Company and the Federal Reserve Book Entry
System.
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<PAGE> 6
7. REIMBURSEMENT FOR OUT-OF-POCKET EXPENSES OF ESCROW AGENT; FEES.
7.1 Escrow Agent shall be entitled to reimbursement from Bingham
(which expense may be charged by Bingham to BAC and BSC) for
out-of-pocket expenses paid or incurred by it in the
administration of its duties hereunder, including, but not
limited to, all reasonable counsel, advisors' and agents' fees
and disbursements (except those for which indemnification
would not be available under Section 6.5 hereof) and all taxes
or other governmental charges, provided, however, that all
expenses or costs incurred by Escrow Agent in connection with
a Claim shall be submitted to the trier of fact charged with
resolving the Claim and shall be assessed to the Shareholders
if the trier of fact so determines. Escrow Agent is hereby
granted a lien on, and security interest in, the Escrow shares
to secure its rights to payment or reimbursement under this
Agreement and may, without notice, set-off against any and all
amounts held by it hereunder, and retain for its own account,
the full amount of any and all fees, costs, losses,
liabilities, damages and expenses. All such expenses shall be
paid by Bingham. Escrow Agent shall provide copies of invoices
and the like evidencing such expenses to both Bingham and the
Shareholders.
7.2 Escrow Agent's fees for serving as Escrow Agent shall be
payable by Bingham in accordance with Exhibit B attached
hereto.
8. TERMINATION OF AGREEMENT. This Agreement will terminate on the final
disposition to Bingham or the Shareholders of the Escrow Assets in
accordance herewith, except for the respective rights and obligations
of Escrow Agent and the other parties hereto under Sections 6, 7 or 10
hereof, which will survive such disposition.
9. RESIGNATION OF ESCROW AGENT.
9.1 The Escrow Agent may resign as such following the giving of
thirty (30) days' prior written notice to the other parties
hereto. Similarly, the Escrow Agent may be removed and
replaced following the giving of thirty (30) days' prior
written notice to the Escrow Agent by all of the other parties
hereto. In either event, the duties of the Escrow Agent shall
terminate thirty (30) days after the date of such notice (or
as of such earlier date as may be mutually agreeable), and the
Escrow Agent shall then, upon payment of its fees, costs and
expenses, deliver the Escrow Assets to a successor Escrow
Agent as shall be appointed by the other parties hereto as
evidenced by a written notice filed with the Escrow Agent.
9.2 If the other parties hereto are unable to agree upon a
successor prior to the expiration of thirty (30) days
following the date of the notice of resignation or removal,
the then acting Escrow Agent may petition any court of
competent jurisdiction for the appointment of a successor
Escrow Agent or other appropriate relief; and any such
resulting appointment shall be binding upon all of the parties
hereto.
9.3 Upon payment of the fees, costs and expenses of the Escrow
Agent, and acknowledgment by any successor Escrow Agent of the
receipt of the Escrow Assets, the then acting Escrow Agent
shall be fully released and relieved of all further duties,
responsibilities, and obligations under this Agreement.
10. RECORDS. Escrow Agent will maintain accurate records of all
transactions hereunder. Promptly after the termination of this
Agreement, and promptly after the end of each calendar month prior to
such termination, Escrow Agent shall provide Bingham and the
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<PAGE> 7
Shareholders with a complete copy of such records, certified by Escrow
Agent to be a monthly statement showing all transactions in the account
established by this Agreement. The authorized representatives of
Bingham and the Shareholders will also have access to such records at
all reasonable times during normal business hours upon reasonable
notice to Escrow Agent.
11. NOTICES. Any and all notices, requests, demands and other
communications permitted under or required pursuant to this Agreement
(each, a "notice") shall be in writing and shall be deemed given if
personally delivered, faxed (to be followed by hard copy delivered in
one of the manners contemplated in this Section 11) or mailed, postage
prepaid, certified or registered mail, return receipt requested, to the
parties at the addresses or fax numbers set forth below, or at such
other addresses as they may indicate by written notice given as
provided in this Section 11:
If to Shareholders:
Simpson Zelenock, P.C.
260 E. Brown Street, Suite 300
Birmingham, MI 48009
Fax: (248) 647-2776
If to Bingham: With a required copy to:
31700 Middlebelt Road, Suite 125 Jaffe, Raitt, Heuer & Weiss
Farmington Hills, MI 48334 One Woodward Avenue, Suite 2400
Fax: (248) 932-3072 Detroit, MI 48226
Attention: Jeffrey P. Jorissen Fax: (313) 961-8358
Attention: Peter Sugar
If to Escrow Agent:
NBD Bank
611 Woodward Avenue
Corporate Trust Department 11th Floor
Detroit, MI 48226
Fax (313) 225-3420
Attention: Amy Brehler
Bingham and the Shareholders each shall provide the other with a copy
of any notices given to Escrow Agent.
12. PROHIBITION AGAINST SECURITY INTERESTS. Bingham and the Shareholders
hereby covenant and warrant that each shall keep its respective
interests in this Agreement and all amounts, sums, monies, and deposits
to be made pursuant hereto free from all liens, claims, encumbrances
and third-party interests of any kind whatsoever without the prior
written consent of the other party. In addition, Bingham and the
Shareholders hereby agree that neither party shall allow its respective
interests in this Agreement and all amounts, sums, monies and deposits
to be made pursuant hereto to be pledged, hypothecated, mortgaged or
otherwise used as collateral or security without the prior written
consent of the other party. The Shareholders covenant and warrant that
while the Escrow Assets are subject to this Agreement, the Shareholders
will not sell, convey or otherwise dispose of any of the Escrow Assets
or any interest therein, or create, incur, or
7
<PAGE> 8
permit to exist on any pledge, mortgage, lien, charge, encumbrance or
any security interest whatsoever in or with respect to any of the
Escrow Assets except for that created hereby and/or Permitted Transfers
under and as defined by the express terms of either of the Shareholders
Agreement among Bingham, Shareholders and others dated as of March 4,
1998 and/or the Bloomfield Shareholders Agreement among the
Shareholders, dated as of this date. However, the Escrow Agent shall
disregard any such attempted transfer that is asserted to be a
"Permitted Transfer" unless and until it shall receive a written
consent thereto from Bingham, together with explicit and complete
written instructions from the transferor, the transferee and Bingham as
to those steps that are to be taken by Escrow Agent in order to
accommodate that Permitted Transfer under this Agreement. The
Shareholders warrant, and will at their own expense defend, Bingham's
right, title and interest in and to the Escrow Assets against the
claims of any person.
13. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
more than one counterpart, all of which shall together constitute a
single agreement. The parties may execute more than one copy of this
Agreement, in which case each executed copy shall constitute an
original. Copies (whether facsimile, photostatic or otherwise) of
signatures to this Agreement shall be deemed to be originals and may be
relied on to the same extent as the originals.
14. ASSIGNMENT AND MODIFICATION. This Agreement and the rights and
obligations hereunder of any of the parties hereto may not be assigned
without the prior written consent of the other parties hereto having
been obtained. Subject to the foregoing, this Agreement will be binding
upon and inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns. No other person will
acquire or have any rights under, or by virtue of, this Agreement. This
Agreement may be changed or modified only in writing signed by all of
the parties hereto. In the event that there is a conflict between the
terms and conditions of the Purchase Agreement and the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall control.
15. GOVERNING LAW. The parties agree that all actions or proceedings
arising in connection with this Agreement and the instruments,
agreements and documents executed pursuant to the terms of this
Agreement shall be tried, litigated and arbitrated only in courts of
the United States located in the Eastern District of Michigan, Southern
Division, the Oakland County, Michigan Circuit Court, or the office of
the American Arbitration Association located nearest Southfield,
Michigan The parties each waive any objection to such venue and any
claim that such action has been brought in an inconvenient forum. The
provisions of this Section 15 shall survive the termination of this
Agreement.
16. HEADINGS. Headings in this Agreement are for the purposes of reference
only and shall not limit or otherwise affect any of the terms hereof.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have duly executed this Escrow
Agreement as of March 5, 1998.
BINGHAM FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By: /s/ Jeffrey P. Jorissen
-------------------------------
Jeffrey P. Jorissen
Its: President, Chief Executive Officer and
Chief Financial Officer
SHAREHOLDERS
/s/ James A. Simpson
----------------------------------------
JAMES A. SIMPSON
/s/ Katheryne L. Zelenock
----------------------------------------
KATHERYNE L. ZELENOCK
/s/ Jeffrey C. Urban
----------------------------------------
JEFFREY C. URBAN
NBD BANK, a Michigan banking corporation, AS ESCROW
AGENT
By:
-----------------------------------------
Its:
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9
