1
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of __________, 1999 by and between Bingham Financial Services Corporation, a
Michigan corporation (the "Company"), and __________ (the "Holder").
RECITALS:
A. As of April 27, 1999, the Holder has purchased from the Company
_________ shares of the Company's common stock, no par value (the "Shares").
B. The Company and the Holder are entering into this Agreement to
set forth certain registration rights with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the
following definitions:
(a) "Common Stock" means the Company's common stock, no par
value.
(b) "Par Securities" means all securities of the Company
purchased in the Private Placement.
(c) "Person" means an individual, a partnership, a limited
liability company, a joint venture, a corporation, a trust, an
unincorporated organization, a government or any department or agency
thereof, or any other entity.
(d) "Prior Securities" means all securities of the Company which,
as of April 27, 1999, were issued and outstanding and which have
"piggyback" registration rights.
(e) "Private Placement" means the offer and sale by the Company
to investors of 800,330 shares of Common Stock, including the Shares,
effective as of April 27, 1999.
(f) "Registrable Securities" means (i) the Shares; and (ii) any
shares of Common Stock issued or issuable with respect to the Shares
by way of stock dividend, stock split or in connection with a
combination of stock, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities on the earliest of
the following dates: (i) the date such securities have been sold to
the public pursuant to an offering registered under the Securities
Act, or (ii) the date such securities are eligible to be sold pursuant
to Rule 144 (or any similar provisions then in force) under the
Securities Act.
(g) "Registration Statement" means any registration statement of
the Company which covers any Registrable Securities pursuant to the
provisions of this Agreement.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Act" means the Securities Act of 1933, as
amended, or any similar federal law then in force.
(j) "Subordinate Securities" means all securities of the Company
which have
2
"piggyback" registration rights subordinate to those of the
Registrable Securities as set forth in Section 3.
2. DEMAND REGISTRATION.
(a) From the later of (i) the date on which the Company is
eligible to file registration statements on Form S-3; or (ii) one year
after the date of this Agreement (the "Registrable Date"), until the
third anniversary of the Registrable Date, subject to the terms of
this Agreement, the holders of at least 50% of the then outstanding
shares of the Registrable Securities may request one (1) registration
under the Securities Act of all or part of their Registrable
Securities (a "Demand Registration"), provided, however, that the
Company must then be eligible to file registration statements on Form
S-3 or any similar short-form registration. Within twenty (20) days
after receipt of any request pursuant to this Section 2.1, the Company
shall give written notice of such request to all holders of
Registrable Securities and shall include in such registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion within fifteen (15) days after delivery
of the Company's notice.
(b) The Company shall include in any Demand Registration any
Registrable Securities; provided, however, if the Demand Registration
is an underwritten public offering and the managing underwriters
advise the Company in writing that in their opinion the number of
securities requested to be included exceeds the number of securities
which can be sold in an orderly manner in such offering within a price
range acceptable to the holders of a majority of the Registrable
Securities initially requesting registration, the Company shall
include in such registration only that number of Registrable
Securities requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range
of such offering, pro-rata among the respective holders thereof on the
basis of the amount of Registrable Securities owned by each such
holder.
(c) The Company may postpone for up to ninety (90) days the
filing or the effectiveness of a registration statement for a Demand
Registration if the Company reasonably believes that such Demand
Registration would have an adverse effect on any proposal or plan by
the Company or any of its subsidiaries to engage in any acquisition of
assets (other than in the ordinary course of business) or any merger,
consolidation, reorganization, tender offer or other significant
transaction.
(d) The party originally requesting a Demand Registration shall
have the right to select the managing underwriters to administer the
offering anticipated by any Demand Registration; provided, however,
that such managing underwriters are recognized nationally and are
approved by the Company, which approval shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, if
the Company proposes to participate in any Demand Registration, the
Company shall have the sole and exclusive right to select the
underwriter(s) to administer the offering.
3. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any of its securities
under the Securities Act (other than pursuant to (i) a registration on
Form S-4 or any successor form, or (ii) an offering of securities in
connection with an employee benefit plan, a stock option plan, a stock
dividend plan, a stock ownership plan or a dividend reinvestment plan)
at any time after the date hereof and the registration form to be used
may be used for the registration of Registrable Securities (a
"Piggyback Registration"), the Company
-2-
3
shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration (each a
"Piggyback Notice") and, subject to Sections 3(b) and 3(c) below, the
Company shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after the date of sending
of the Company's notice (the "Included Registrable Securities");
provided, however, that, at the Company's option, the Company may file
a separate Registration Statement for, and with respect to, Included
Registrable Securities in satisfaction of the Company's obligation
hereunder.
(b) If a Piggyback Registration is an underwritten registration
that includes primary shares to be sold on behalf of the Company, and
the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner
within a price range acceptable to the Company, the Company shall
include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, any Prior Securities requested to be
included in such registration, if any, by the holders thereof, (iii)
third, the Registrable Securities and any other Par Securities
requested to be included in such registration, pro rata among the
holders of Registrable Securities and other Par Securities requesting
such registration on the basis of the number of shares owned by each
such holder, and (iv) finally, any Subordinate Securities requested to
be included in such registration by holders thereof.
(c) If a Piggyback Registration is an underwritten secondary
registration initiated by and on behalf of holders of the Company's
securities other than the holders of Registrable Securities pursuant
to the exercise of demand registration rights, and the managing
underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially
requesting such registration, the Company shall include in such
registration (i) first, all of the securities requested to be included
therein by the holders initially requesting such registration, and
(ii) second, any Prior Securities requested to be included in such
registration, if any, by the holders thereof, (iii) third, the
Registrable Securities and any other Par Securities requested to be
included in such registration, pro rata among the holders of
Registrable Securities and other Par Securities requesting such
registration on the basis of the number of shares owned by each such
holder, and (iv) finally, any Subordinate Securities requested to be
included in such registration by holders thereof.
(d) After the date of this Agreement, the Company shall not,
without the written consent of the holders of Registrable Securities,
grant to any holder or purchaser of the Company's securities piggyback
rights prior to or on a par with the rights of holders of Par
Securities, as set forth in this Section 3.
(e) In the case of an underwritten Piggyback Registration, the
Company shall have the sole and exclusive right to select the
underwriter(s) to administer the offering.
4. REGISTRATION PROCEDURES. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its reasonable best efforts to effect
the registration and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof and pursuant thereto the Company
shall as expeditiously as possible:
-3-
4
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its reasonable best
efforts to cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective for the period required by the intended method of
disposition, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration Statement;
(c) furnish to each seller of Registrable Securities such number
of copies of such Registration Statement, each amendment and
supplement thereto, the prospectus included in such Registration
Statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller
(provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 4(d), (ii)
subject itself to taxation in any such jurisdiction, (iii) consent to
general service of process in any such jurisdiction, or (iv) qualify
such Registrable Securities in a given jurisdiction where expressions
of investment interest are not sufficient in such jurisdiction to
reasonably justify the expense of qualification in the jurisdiction or
where such qualification would require the Company to register as a
broker or dealer in such jurisdiction).
(e) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the happening of any event as a result of
which the prospectus included in such Registration Statement contains
an untrue statement of a material fact or omits any material fact
necessary to make the statements therein not misleading, and, at the
request of any such seller, the Company shall prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and to be qualified
for trading on each system on which similar securities issued by the
Company are from time to time qualified;
(g) in the event of an underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter(s) of such offering;
and
(h) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending
or preventing the use of any
-4-
5
related prospectus or suspending the qualification of any Common
Stock included in such Registration Statement for sale in any
jurisdiction, the Company shall use its reasonable best efforts to
promptly obtain the withdrawal of such order.
The Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(e) or (h) hereof, such
Holder shall forthwith discontinue disposition of shares of Common Stock
pursuant to a Piggyback Registration until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 4(e) or
until the withdrawal of such order under Section 4(h).
5. REGISTRATION EXPENSES. The Company shall bear all costs and
expenses incident to the Company's performance of, or compliance with, this
Agreement, 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 disbursements of counsel for the
Company, all independent certified public accountants of the Company and fees
and expenses of other Persons retained by the Company in connection with the
distribution of the Registrable Securities. Each holder participating in a
registration shall pay all discounts and commissions attributable to, and all
transfer taxes relating to the sale or disposition of his, her or its
securities. Each holder shall also pay all fees and expenses of any attorney or
accountant retained by him, her or it in connection with the registration of
his, her or its securities.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by
law, each holder of Registrable Securities, its officers, directors
and trustees and each Person who controls (within the meaning of the
Securities Act) such holder against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue
statement of material fact contained in any Registration Statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished to the Company in
writing by such holder expressly for use therein or by such holder's
failure to deliver a copy of the Registration Statement or prospectus
or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same.
In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each
Person who controls (within the meaning of the Securities Act) such
underwriters to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
(b) In connection with any Registration Statement in which a
holder of Registrable Securities is participating, each such holder
shall furnish to the Company in writing such information as the
Company reasonably requests for use in connection with any such
Registration Statement or prospectus and, to the extent permitted by
law, shall indemnify the Company, its directors and officers and each
Person who controls (within the meaning of the Securities Act) the
Company against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material
fact contained in the Registration Statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or
omission is contained in any information so furnished in writing by
such holder; provided, however, that the
-5-
6
obligation to indemnify under this Section 6(b) shall be several, not
joint and several, among such holders of Registrable Securities.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim shall not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other such
indemnified parties with respect to such claim.
(d) If for any reason the indemnification provided for in the
preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold such party harmless as contemplated by the preceding
clauses (a) and (b), then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of the loss,
claim, damage, liability or expense in the proportion as is appropriate to
reflect (i) the relative fault of the indemnified party and the
indemnifying party, and (ii) any other relevant equitable considerations.
(e) The indemnities provided in this Section 6 shall survive the
Holder's transfer of any Registrable Securities.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
8. DISCLOSURE. With a view to making available to the Holder the benefits
of Rule 144 promulgated under the Securities Act, the Company agrees, for a
period of two years following the date of this Agreement, to:
(a) make and keep public information available within the meaning of
Rule 144(c) of the Securities Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(c) furnish to the 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 Rule 144 and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of
the Company, and (iii) such other reports, documents and other information
in the possession of or reasonably obtainable by the Company as the Holder
may reasonably request in availing itself of Rule 144.
-6-
7
9. MISCELLANEOUS.
(a) The Company shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Any Person having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically to recover damages
caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without
posting any bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior written consent of
the Company and holders of a majority of the then outstanding shares of
Registrable Securities.
(d) All covenants and agreements in this Agreement by or on behalf of
any of the parties shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
In addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or
holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the same agreement. Photographic or facsimile
reproductions of this Agreement may be made and relied upon to the same
extent as the originals.
(g) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) This Agreement has been executed in, and shall be construed in
accordance with the laws of, the State of Michigan.
(i) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be
in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the Holder at
the address indicated on the records of the Company and to the Company at
the address indicated below:
-7-
8
260 East Brown Street
Suite 200
Birmingham, MI 48009
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending
party.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of , 1999.
----------------
COMPANY:
BINGHAM FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By:
---------------------------------------
Its:
---------------------------------------
HOLDER:
---------------------------------------
-8-