INVESTMENT AGREEMENT
Exhibit 99.1
INVESTMENT AGREEMENT (this “AGREEMENT”), dated as of July 7, 2010 by and between Independent Bank
Corporation, a Michigan corporation (the “Company”), and Dutchess Opportunity Fund, II, LP, a
Delaware Limited Partnership (the “Investor”).
WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein,
the Investor shall invest up to Fifteen million dollars ($15,000,000) to purchase the Company’s
Common Stock, no par value per share (the “Common Stock”);
WHEREAS, such investments will be made in reliance upon the provisions of Section 4(2) under the
Securities Act of 1933, as amended (the “1933 Act”), Rule 506 of Regulation D, and the rules and
regulations promulgated thereunder, and/or upon any other exemption from the registration
requirements of the 1933 Act as may be available with respect to any or all of the investments in
Common Stock to be made hereunder; and
WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties hereto
are executing and delivering a Registration Rights Agreement substantially in the form attached
hereto (the “Registration Rights Agreement”) pursuant to which the Company has agreed to provide
certain registration rights under the 1933 Act, and the rules and regulations promulgated
thereunder, and applicable state securities laws.
NOW THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral
part of this Agreement, the covenants and agreements set forth hereafter, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company
and the Investor hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following meanings specified or
indicated below, and such meanings shall be equally applicable to the singular and plural forms of
such defined terms.
“1933 Act” shall have the meaning set forth in the preamble of this agreement.
“1934 Act” shall mean the Securities Exchange Act of 1934, as it may be amended.
“Affiliate” shall have the meaning specified in Section 5(H), below.
“Agreement” shall mean this Investment Agreement.
“Articles of Incorporation” shall have the meaning specified in Section 4(C).
“By-laws” shall have the meaning specified in Section 4(C).
“Closing” shall have the meaning specified in Section 2(G).
“Closing Date” shall have the meaning specified in Section 2(G).
“Common Stock” shall have the meaning set forth in the preamble of this Agreement.
“Control” or “Controls” shall have the meaning specified in Section 5(H).
“Effective Date” shall mean the date the SEC declares effective under the 1933 Act the
Registration Statement covering the Securities.
“Environmental Laws” shall have the meaning specified in Section 4(M).
“Equity Line Transaction Documents” shall mean this Agreement and the Registration
Rights Agreement.
“Execution Date” shall mean the date indicated in the preamble to this Agreement.
“Indemnities” shall have the meaning specified in Section 11.
“Indemnified Liabilities” shall have the meaning specified in Section 11.
“Investor” shall have the meaning indicated in the preamble of this Agreement.
“Material Adverse Effect” shall have the meaning specified in Section 4(A).
“Maximum Common Stock Issuance” shall have the meaning specified in Section 2(H).
“Open Market Adjustment Amount” shall have the meaning specified in Section 2(I).
“Open Market Share Purchase” shall have the meaning specified in Section 2(I).
“Open Period” shall mean the period beginning on and including the Trading Day
immediately following the Effective Date and ending on the earlier to
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occur of (i) the date which is thirty-six (36) months after the Effective Date; or (ii) termination
of the Agreement in accordance with Section 9, below.
“Pricing Period” shall mean the five (5) consecutive Trading Days beginning on the Put
Notice Date and ending on and including the date that is four (4) Trading Days after such Put
Notice Date.
“Principal Market” shall mean each of the Nasdaq Capital Market, the NYSE Amex, the
New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market, the OTC
Bulletin Board or the Pink Sheets, whichever is the principal market on which the Common Stock is
listed from time to time.
“Prospectus” shall mean the prospectus, preliminary prospectus and supplemental
prospectus used in connection with the Registration Statement.
“Purchase Amount” shall mean the total amount being paid by the Investor on a
particular Closing Date to purchase the Securities.
“Purchase Price” shall mean ninety-five percent (95%) of the lowest daily VWAP (as
defined herein) of the Common Stock during the Pricing Period.
“Put” shall have the meaning set forth in Section 2(B) hereof.
“Put Amount” shall have the meaning set forth in Section 2(B) hereof.
“Put Notice” shall mean a written notice in the form attached hereto as Exhibit C,
sent to the Investor by the Company stating the Put Amount in U.S. dollars the Company intends to
sell to the Investor pursuant to the terms of the Agreement and stating the current number of
Shares issued and outstanding on such date.
“Put Notice Date” shall mean the Trading Day on which the Investor receives a Put
Notice; provided, however, that notwithstanding Section 12(G) below, if the Company sends a Put
Notice by facsimile or email in accordance with Section 12(G) below, the Put Notice shall be deemed
received by Investor on (a) the Trading Day it is transmitted if the transmittal is completed prior
to 9:00 a.m. Eastern Time on a Trading Day, or (b) the immediately succeeding Trading Day if the
transmittal is completed after 9:00 a.m. Eastern Time on a Trading Day or if the transmittal is
completed on a day that is not a Trading Day. No Put Notice may be deemed delivered on a day that
is not a Trading Day.
“Put Settlement Sheet” shall mean a written notice in the form attached hereto as
Exhibit D, which shall be deemed a part of this Agreement as if incorporated herein by reference.
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“Put Shares Due” shall have the meaning specified in Section 2(I).
“Registration Rights Agreement” shall have the meaning set forth in the recitals,
above.
“Registration Statement” means the registration statement of the Company filed under
the 1933 Act covering the resale by the Investor of the Common Stock issuable hereunder.
“Related Party” shall have the meaning specified in Section 5(H).
“Resolution” shall have the meaning specified in Section 8(E).
“SEC” shall mean the U.S. Securities & Exchange Commission.
“SEC Documents” shall mean all reports, schedules, forms, statements and other
documents filed or furnished by the Company with the SEC, including all exhibits included therein
and financial statements and schedules thereto and documents incorporated by reference therein.
“Securities” shall mean the shares of Common Stock issued pursuant to the terms of the
Agreement.
“Shares” shall mean the shares of the Company’s Common Stock.
“Subsidiaries” shall have the meaning specified in Section 4(A).
“Suspension Price” with respect to any Put shall be the price per share defined by the
Company in the applicable Put Notice.
“Trading Day” shall mean any day on which the Principal Market for the Common Stock is
open for trading, from the hours of 9:30 am until 4:00 pm.
“VWAP” shall mean the volume weighted average price of the Common Stock.
SECTION 2. PURCHASE AND SALE OF COMMON STOCK.
(A) PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and conditions set forth herein, the
Company may issue and sell to the Investor, and the Investor shall purchase from the Company, up to
that number of Shares having an aggregate Purchase Price of fifteen million dollars ($15,000,000).
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(B) DELIVERY OF PUT NOTICES. Subject to the terms and conditions of the Equity Line Transaction
Documents, and from time to time during the Open
Period, the Company may, in its sole discretion, deliver a Put Notice to the Investor which states
the dollar amount (designated in U.S. Dollars) (the “Put Amount”) of the aggregate Purchase Price
for Shares which the Company intends to sell to the Investor on a Closing Date (the “Put”). The Put
Notice shall be in the form attached hereto as Exhibit C and incorporated herein by reference. The
Put Amount shall not exceed the greater of 1) two (2), multiplied by the average daily
volume (U.S. market only) of the Common Stock for the three (3) Trading Days immediately prior to
the applicable Put Notice Date, multiplied by the average of the three (3) daily closing
prices of the Common Stock immediately preceding the Put Date, or 2) two hundred and fifty thousand
dollars ($250,000). During the Open Period, the Company shall not be entitled to submit a Put
Notice until the Pricing Period for the prior Put has been completed. The Common Stock identified
in the Put Notice shall be purchased by the Investor for a price per Share equal to the Purchase
Price.
(C) SUSPENSION OF PUT. On each Put Notice submitted to the Investor by the Company, the Company
shall have the option to specify a Suspension Price for that Put. In the event the Purchase Price
for any Put (which is not determined until after the conclusion of the Pricing Period) is less than
the Suspension Price specified for that Put, then (x) notwithstanding the definition of “Purchase
Price” in Section 1 above, the Purchase Price for that Put shall equal the Suspension Price, and
(y) the Investor shall only be obligated to purchase, and the Company shall only be obligated to
sell, pursuant to the applicable Put Notice, that number of Shares specified by the Investor in the
Put Settlement Statement.
(D) INTENTIONALLY OMITTED
(E) CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the
contrary in this Agreement, the Investor shall not be obligated to purchase any Shares at a Closing
(as defined in Section 2(G)) unless each of the following conditions are satisfied:
(I) a Registration Statement shall have been declared effective and shall remain effective and
available for the resale of all the Registrable Securities (as defined in the Registration Rights
Agreement) as of the Closing with respect to the subject Put Notice;
(II) as of the Closing with respect to the subject Put Notice, the Common Stock shall be
listed on a Principal Market and the Company shall not have been notified of any pending or
threatened proceeding or other action to suspend the trading of the Common Stock from the Principal
Market on which it is listed as of such Closing;
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(III) the Company has complied with its obligations and is otherwise not in breach of or in
default under, this Agreement, the Registration Rights Agreement
or any other agreement executed in connection herewith which has not been cured prior to delivery
of the subject Put Notice;
(IV) no injunction shall have been issued and remain in force, or action commenced by a
governmental authority which has not been stayed or abandoned, prohibiting the purchase or the
issuance of the Securities; and
(V) the issuance of the Securities will not violate any shareholder approval requirements of
the Principal Market on which the Common Stock is listed as of such Closing.
If any of the events described in clauses (I) through (V) above occurs during a Pricing Period,
then the Investor shall have no obligation to purchase the Put Amount of Common Stock set forth in
the applicable Put Notice.
(F) RESERVED
(G) MECHANICS OF PURCHASE OF SHARES BY INVESTOR. Subject to the satisfaction of the conditions set
forth in Section 2(E), the closing of the purchase by the Investor of Shares described in a Put
Notice (a “Closing”) shall occur on a date (the “Closing Date”) that is no later than five (5)
Trading Days following the last day in the Pricing Period of the applicable Put. Prior to each
Closing Date, (I) within two (2) Trading Days after the end of the Pricing Period, the Investor
will notify the Company of the number of Shares to be delivered to the Investor for that Put by
delivering to the Company a Put Settlement Sheet; (II) within
five (5) Trading Days after the end
of the Pricing Period, the Company shall deliver to the Investor pursuant to this Agreement,
certificates representing the Shares to be issued to the Investor on such Closing Date, registered
in the name of the Investor; and (III) promptly upon receipt of such Shares from the Company, but
no later than the Closing Date, the Investor shall deliver to the Company the Purchase Price to be
paid for such Shares. In lieu of delivering physical certificates representing the Securities and
provided that the Company’s transfer agent then is participating in The Depository Trust Company
(“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of the Investor or at the
option of the Company, the Company shall use all commercially reasonable efforts to cause its
transfer agent to electronically transmit the Securities by crediting the account of the Investor’s
prime broker (as specified by the Investor prior to the Closing Date for that Put) with DTC through
its Deposit Withdrawal Agent Commission (“DWAC”) system.
(H) OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the
contrary, without the approval of the Company’s shareholders, the number of Shares issuable by the
Company, and purchasable
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by the Investor, pursuant to this Agreement shall not exceed 15,024,685
Shares of Common Stock (the “Maximum Common Stock Issuance”). The parties understand and agree
that the Company shall have no obligation to seek or
obtain shareholder approval to issue Shares in excess of the Maximum Common Stock Issuance and that
the Company’s failure to seek or obtain such shareholder approval shall in no way adversely affect
the validity and due authorization of the issuance and sale of Securities or the Investor’s
obligation in accordance with the terms and conditions hereof to purchase a number of Shares in the
aggregate up to the Maximum Common Stock Issuance.
(I) LIQUIDATED DAMAGES. If, by the third (3rd) Trading Day following the Closing Date, the
Company has failed to deliver any portion of the Shares to be delivered to the Investor on such
Closing Date in accordance with and subject to the terms and conditions of this Agreement (the
Shares not delivered are referred to as the “Put Shares Due”), and the Investor purchases, in an
open market transaction or otherwise, a number of Shares up to the number of Put Shares Due (the
“Open Market Share Purchase”), then the Company shall pay to the Investor, as liquidated damages
and in lieu and satisfaction of any other damages, costs, expenses, amount, or other loss claimed
by the Investor, the Open Market Adjustment Amount (as defined below). The “Open Market Adjustment
Amount” is the amount equal to the excess, if any, of (x) the Investor’s total purchase price
(including brokerage commissions, if any) for the Open Market Share Purchase minus (y) the net
proceeds (after brokerage commissions, if any) received by the Investor from the sale of the Put
Shares Due. The Company shall pay the Open Market Adjustment Amount to the Investor in immediately
available funds within five (5) business days of written demand by the Investor, which written
demand shall be (1) delivered within thirty (30) days of the applicable Closing Date or the
Investor shall be deemed to have waived any claim to damages with respect to the failure of the
Company to deliver the Put Shares Due on such Closing Date, unless otherwise agreed by the Company,
and (2) accompanied by evidence satisfactory to the Company of the Open Market Adjustment Amount.
By way of illustration and not in limitation of the foregoing, if the Investor purchases Shares of
Common Stock having a total purchase price (including brokerage commissions) of $11,000 to cover an
Open Market Share Purchase with respect to Shares of Common Stock it sold for net proceeds of
$10,000, the Open Market Adjustment Amount which the Company will be required to pay to the
Investor will be $1,000. The Investor shall use its good faith, best efforts to minimize the
amount of any Open Market Adjustment Amount.
(J) LIMITATION ON AMOUNT OF OWNERSHIP. Notwithstanding anything to the contrary in this
Agreement, the Investor represents, warrants, and covenants with the Company that the Investor’s
beneficial ownership of the Company’s Common Stock will never exceed 4.99% of the issued and
outstanding Shares of Common Stock; provided that this sentence shall not be deemed to limit,
reduce, or otherwise affect the Investor’s obligation to purchase Shares pursuant to this
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Agreement
upon receipt of a Put Notice from the Company. For purposes of this Section 2(J), “beneficial
ownership” shall be determined in accordance with
Section 13(d) of the 1934 Act and the applicable rules, regulations, and guidance issued by the SEC
pursuant to such Section 13(d).
SECTION 3. INVESTOR’S REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Investor represents and warrants to the Company, and covenants, that:
(A) SOPHISTICATED INVESTOR. The Investor has, by reason of its business and financial experience,
such knowledge, sophistication and experience in financial and business matters and in making
investment decisions of this type that it is capable of (I) evaluating the merits and risks of an
investment in the Securities and making an informed investment decision; (II) protecting its own
interest; and (III) bearing the economic risk of such investment for an indefinite period of time.
(B) AUTHORIZATION; ENFORCEMENT. The Investor has the requisite power and authority to enter into
and perform this Agreement and the Registration Rights Agreement. The execution and delivery of the
Equity Line Transaction Documents by the Investor and the consummation by it of the transactions
contemplated hereby and thereby have been duly and validly authorized by the Investor’s general
partners and no further consent or authorization is required by the partners. This Agreement has
been duly and validly authorized, executed and delivered on behalf of the Investor and is a valid
and binding agreement of the Investor enforceable against the Investor in accordance with its
terms, subject as to enforceability to general principles of equity and to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and remedies.
(C) SECTION 9 OF THE 1934 ACT; STOCK SALES. During the term of this Agreement, the Investor will
comply with the provisions of Section 9 of the 1934 Act, and the rules promulgated thereunder, with
respect to transactions involving the Common Stock. The Investor agrees not to sell the Company’s
stock short, either directly or indirectly (including through its affiliates, principals or
advisors), during the period beginning on the Execution Date and ending with the last day of the
Open Period.
(D) INVESTOR QUALIFICATIONS. Investor is an “Accredited Investor” as that term is defined in Rule
501(a) of Regulation D of the 1933 Act. Investor is a “Qualified Institutional Buyer” as that term
is defined in Rule 144A promulgated under the 1933 Act.
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(E) NO CONFLICTS. The execution, delivery and performance of the Equity Line Transaction Documents
by the Investor and the consummation by the Investor of the transactions contemplated hereby and
thereby will not conflict with or result in
a violation of the partnership agreement or other organizational documents of the Investor; any
law, rule, or regulation applicable to the Investor; or any material contract or agreement to which
the Investor is a party.
(F) OPPORTUNITY TO DISCUSS. The Investor has received all materials relating to the Company’s
business, finance and operations which it has requested. The Investor has had an opportunity to
discuss the business, management and financial affairs of the Company with the Company’s
management.
(G) INVESTMENT PURPOSES. The Investor is purchasing the Securities for its own account for
investment purposes and agrees to resell or otherwise dispose of the Securities solely in
accordance with the registration provisions of the 1933 Act (or pursuant to an exemption from such
registration provisions).
(H) NO REGISTRATION AS A DEALER. The Investor is not and will not be required to be registered as a
“dealer” under the 1934 Act, either as a result of its execution and performance of its obligations
under this Agreement or otherwise.
(I) GOOD STANDING. The Investor is a Limited Partnership, duly organized, validly existing and in
good standing in the state of Delaware.
(J) TAX LIABILITIES. The Investor understands that it is liable for its own tax liabilities.
(K) APPLICABLE LAWS. The Investor will comply with all applicable laws, rules, and regulations in
accordance with its performance of the Equity Line Transaction Documents, including Regulation M
under the 1934 Act, if applicable.
(L) NO GENERAL SOLICITATION. The Investor was not solicited by the Company, nor any of the
Company’s Affiliates, nor any person acting on the Company’s behalf, by any form of general
solicitation or general advertising (within the meaning of SEC Regulation D) in connection with the
offer or sale of the Common Stock to be offered as set forth in this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as disclosed in the Company’s SEC Documents, the Company makes the following representations
and warranties to the Investor. The Company’s SEC Documents shall be deemed to qualify and create
exceptions to all of the Company’s representations and warranties set forth in the Equity Line
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Transaction Documents, regardless of whether any specific representation or warranty expressly
references the SEC Documents.
(A) ORGANIZATION AND QUALIFICATION. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Michigan, USA and has the requisite
corporate power and authorization to own its properties and to carry on its business as now being
conducted. Both the Company and the companies it owns or controls (“Subsidiaries”) are duly
qualified to do business and are in good standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes such qualification necessary, except
to the extent that the failure to be so qualified or be in good standing would not have a Material
Adverse Effect. As used in this Agreement, “Material Adverse Effect” means any material adverse
effect on (i) the properties, assets, operations, results of operations, or financial condition of
the Company and its Subsidiaries, if any, taken as a whole, (ii) the transactions contemplated
hereby or by the agreements and instruments to be entered into in connection herewith, or (iii) the
authority or ability of the Company to perform its obligations under the Equity Line Transaction
Documents.
(B) AUTHORIZATION; ENFORCEMENT; COMPLIANCE WITH OTHER INSTRUMENTS.
(I) The Company has the requisite corporate power and authority to enter into and perform this
Investment Agreement and the Registration Rights Agreement, and to issue the Securities in
accordance with the terms hereof and thereof.
(II) The execution and delivery of the Equity Line Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby, including without
limitation the reservation for issuance and the issuance of the Securities pursuant to this
Agreement, have been duly and validly authorized by the Company’s Board of Directors and no further
consent or authorization is required by the Company, its Board of Directors, or its shareholders.
(III) The Equity Line Transaction Documents have been duly and validly executed and delivered
by the Company.
(IV) The Equity Line Transaction Documents constitute the valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors’ rights and remedies.
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(C) CAPITALIZATION. As of the date hereof, the authorized capital stock of the Company consists of
(x) 500,000,000 shares of Common Stock with no par value per share, of which as of the date hereof,
75,123,427 shares are issued and
outstanding, and (y) 200,000 shares of preferred stock of which 74,426 shares are issued and
outstanding as of the Execution Date.
Except as disclosed in the Company’s SEC Documents:
(I) no shares of the Company’s capital stock are subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by the Company; (II) there are no
outstanding debt securities; (III) there are no outstanding shares of capital stock, options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, any shares of capital stock of the Company or any of
its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or
any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights convertible into, any
shares of capital stock of the Company or any of its Subsidiaries other than customary option
grants as part of compensation packages to the Company’s officers and directors; (IV) there are no
agreements or arrangements under which the Company or any of its Subsidiaries is obligated to
register the sale of any of their securities under the 1933 Act (except the Registration Rights
Agreement); (V) there are no outstanding securities of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries; (VI) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities as described in this Agreement; (VII) the Company does not have any
stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement;
and (VIII) there is no dispute as to the classification of any shares of the Company’s capital
stock.
The Investor has had access through the SEC’s XXXXX website to, true and correct copies of the
Company’s Articles of Incorporation, as amended and in effect on the date hereof (the “Articles of
Incorporation”), and the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and
the terms of all securities convertible into or exercisable for Common Stock and the material
rights of the holders thereof in respect thereto.
(D) ISSUANCE OF SHARES. The Company has reserved at least 15,024,685 Shares for issuance pursuant
to this Agreement, which have been duly authorized and reserved for issuance (subject to adjustment
pursuant to the Company’s covenant set forth in Section 5(F) below) pursuant to this Agreement.
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Upon issuance in accordance with this Agreement, the Securities will be validly issued, fully paid
for and non-assessable and free from all taxes, liens and charges with respect to the issue
thereof.
(E) NO CONFLICTS. The execution, delivery and performance of the Equity Line Transaction Documents
by the Company and the consummation by the Company of the transactions contemplated hereby and
thereby will not (I) result in a violation of the Articles of Incorporation, any Certificate of
Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or
the By-laws; or (II) conflict with, or constitute a material default (or an event which with notice
or lapse of time or both would become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any material agreement, contract,
indenture mortgage, indebtedness or instrument to which the Company or any of its Subsidiaries is a
party, or to the Company’s knowledge result in a violation of any law, rule, regulation, order,
judgment or decree (including United States federal and state securities laws and regulations and
the rules and regulations of the Principal Market or principal securities exchange or trading
market on which the Common Stock is traded or listed) applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound
or affected. Neither the Company nor its Subsidiaries is in violation of any term of, or in default
under, the Articles of Incorporation, any Certificate of Designations, Preferences and Rights of
any outstanding series of preferred stock of the Company or the By-laws or their organizational
charter or by-laws, respectively, or any contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company
or its Subsidiaries, except for possible conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations that would not individually or in the aggregate have or
constitute a Material Adverse Effect. The business of the Company and its Subsidiaries is not being
conducted, and shall not be conducted, in violation of any law, statute, ordinance, rule, order or
regulation of any governmental authority or agency, regulatory or self-regulatory agency, or court,
except for possible violations the sanctions for which either individually or in the aggregate
would not have a Material Adverse Effect. Except as specifically contemplated by this Agreement and
as required under the 1933 Act or any securities laws of any states, to the Company’s knowledge,
the Company is not required to obtain any consent, authorization, permit or order of, or make any
filing or registration (except the filing of a registration statement as outlined in the
Registration Rights Agreement between the Parties) with, any court, governmental authority or
agency, regulatory or self-regulatory agency or other third party in order for it to execute,
deliver or perform any of its obligations under, or contemplated by, the Equity Line Transaction
Documents in accordance with the terms hereof or thereof. All consents, authorizations, permits,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof and are in full force and
effect as of the
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date hereof. The Company and its Subsidiaries are unaware of any facts or
circumstances which might give rise to any violation or default of any of the foregoing
representations or warranties. The Company is not, and will not be, in violation of the listing
requirements of the Principal Market as in effect on the
date hereof and on each of the Closing Dates and is not aware of any facts which would reasonably
lead to delisting of the Common Stock by the Principal Market in the foreseeable future.
(F) SEC DOCUMENTS; FINANCIAL STATEMENTS. As of the date hereof, the SEC Documents include all
reports, schedules, forms, statements and other documents required to be filed by the Company with
the SEC pursuant to the reporting requirements of the 1934 Act. The Investor has had access through
the SEC’s XXXXX website to, true and complete copies of the SEC Documents. As of their respective
filing dates, the SEC Documents complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto.
Such financial statements have been prepared in accordance with generally accepted accounting
principles, and audited by a firm that is a member a member of the Public Companies Accounting
Oversight Board (“PCAOB”) consistently applied, during the periods involved (except (I) as may be
otherwise indicated in such financial statements or the notes thereto, or (II) in the case of
unaudited interim statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No
other written information provided by or on behalf of the Company to the Investor which is not
included in the SEC Documents, including, without limitation, information referred to in Section
4(D) of this Agreement, contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstance under
which they are or were made, not misleading. Neither the Company nor any of its Subsidiaries or any
of their officers, directors, employees or agents have provided the Investor with any material,
nonpublic information which was not publicly disclosed prior to the date hereof and any material,
nonpublic information provided to the Investor by the Company or its Subsidiaries or any of their
officers, directors, employees or agents prior to any Closing Date shall be publicly disclosed by
the Company prior to such Closing Date.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
13
(G) ABSENCE OF CERTAIN CHANGES. Except as otherwise set forth in the SEC Documents, the Company
does not intend to change the business operations of the Company in any material way. The Company
has not taken any steps, and does not currently expect to take any steps, to seek protection
pursuant to any bankruptcy law nor does the Company or its Subsidiaries have any knowledge or
reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings.
(H) ABSENCE OF LITIGATION AND/OR REGULATORY PROCEEDINGS. Except as set forth in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending or, to the knowledge of the
executive officers of Company or any of its Subsidiaries, threatened against or affecting the
Company, the Common Stock or any of the Company’s Subsidiaries or any of the Company’s or the
Company’s Subsidiaries’ officers or directors in their capacities as such, in which an adverse
decision could have a Material Adverse Effect.
(I) ACKNOWLEDGMENT REGARDING INVESTOR’S PURCHASE OF SHARES. The Company acknowledges and agrees
that the Investor is acting solely in the capacity of an arm’s length purchaser with respect to the
Equity Line Transaction Documents and the transactions contemplated hereby and thereby. The Company
further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the Equity Line Transaction Documents and the
transactions contemplated hereby and thereby and any advice given by the Investor or any of its
respective representatives or agents in connection with the Equity Line Transaction Documents and
the transactions contemplated hereby and thereby is merely incidental to the Investor’s purchase of
the Securities, and is not being relied on by the Company. The Company further represents to the
Investor that the Company’s decision to enter into the Equity Line Transaction Documents has been
based solely on the independent evaluation by the Company and its representatives.
(J) NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES. Except as set forth in the
SEC Documents, as of the date hereof, no event, liability, development or circumstance has occurred
or exists, or to the Company’s knowledge is contemplated to occur, with respect to the Company or
its Subsidiaries or their respective business, properties, assets, prospects, operations or
financial condition, that would be required to be disclosed by the Company under applicable
securities laws on a registration statement filed with the SEC relating to an issuance and sale by
the Company of its Common Stock and which has not been publicly announced.
(K) EMPLOYEE RELATIONS. Neither the Company nor any of its Subsidiaries is involved in any union
labor dispute nor, to the knowledge of the Company or any
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
14
of its Subsidiaries, is any such dispute
threatened. Neither the Company nor any of its Subsidiaries is a party to a collective bargaining
agreement, and the Company and its Subsidiaries believe that relations with their employees are
good. No executive officer (as defined in Rule 501(f) of the 0000 Xxx) has notified
the Company that such officer intends to leave the Company’s employ or otherwise terminate such
officer’s employment with the Company.
(L) INTELLECTUAL PROPERTY RIGHTS. The Company and its Subsidiaries own or possess adequate rights
or licenses to use all trademarks, trade names, service marks, service xxxx registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights necessary to conduct their respective businesses as now
conducted. Except as set forth in the SEC Documents, none of the Company’s trademarks, trade names,
service marks, service xxxx registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, government authorizations, trade secrets or other intellectual
property rights necessary to conduct its business as now or as proposed to be conducted have
expired or terminated, or are expected to expire or terminate within two (2) years from the date of
this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by
the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights,
copyrights, inventions, licenses, service names, service marks, service xxxx registrations, trade
secret or other similar rights of others, or of any such development of similar or identical trade
secrets or technical information by others and, except as set forth in the SEC Documents, there is
no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being
threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents,
patent rights, invention, copyright, license, service names, service marks, service xxxx
registrations, trade secret or other infringement; and the Company and its Subsidiaries are unaware
of any facts or circumstances which might give rise to any of the foregoing. The Company and its
Subsidiaries have taken commercially reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties.
(M) ENVIRONMENTAL LAWS. The Company and its Subsidiaries (I) are, to the knowledge of the Company
and its Subsidiaries, in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (II)
have, to the knowledge of the Company, received all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective businesses; and (III) are
in compliance, to the knowledge of the Company, with all terms and conditions of any such permit,
license or approval where, in each of the three (3) foregoing cases, the failure to so comply would
have, individually or in the aggregate, a Material Adverse Effect.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
15
(N) TITLE. The Company and its Subsidiaries have good and marketable title to all personal property
owned by them which is material to the business of the Company and its Subsidiaries, in each case
free and clear of all liens, encumbrances and defects except such as are described in the SEC
Documents
or such as do not materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any of its Subsidiaries. Any real
property and facilities held under lease by the Company or any of its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the Company
and its Subsidiaries.
(O) INSURANCE. Each of the Company’s Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as management of the Company
reasonably believes to be prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any of its Subsidiaries has been refused any
insurance coverage sought or applied for and neither the Company nor its Subsidiaries has any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
(P) REGULATORY PERMITS. The Company and its Subsidiaries have in full force and effect all
certificates, approvals, authorizations and permits from the appropriate federal, state, local or
foreign regulatory authorities and comparable foreign regulatory agencies, necessary to own, lease
or operate their respective properties and assets and conduct their respective businesses, and
neither the Company nor any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, approval, authorization or permit, except for
such certificates, approvals, authorizations or permits which if not obtained, or such revocations
or modifications which, would not have a Material Adverse Effect.
(Q) INTERNAL ACCOUNTING CONTROLS. The Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (I) transactions are
executed in accordance with management’s general or specific authorizations; (II) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles by a firm with membership to the PCAOB and to maintain asset
accountability; (III) reasonable controls to safeguard assets are in place; and (IV) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
16
(R) NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Company nor any of its Subsidiaries is
subject to any charter, corporate or other legal restriction, or any judgment, decree or order
which in the judgment of the Company’s officers has or is expected in the future to have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract
or agreement which in the judgment of the Company’s officers has or is expected to have a Material
Adverse Effect.
(S) TAX STATUS. The Company and each of its Subsidiaries has made or filed all United States
federal and state income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent that the Company and each of its
Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all
unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.
(T) CERTAIN TRANSACTIONS. Except as set forth in the SEC Documents filed at least ten (10) days
prior to the date hereof and except for arm’s length transactions pursuant to which the Company
makes payments in the ordinary course of business upon terms no less favorable than the Company
could obtain from disinterested third parties and other than the grant of stock options disclosed
in the SEC Documents or stock options granted in the future as contemplated by current compensation
agreements or plans disclosed in the SEC Documents, none of the officers, directors, or employees
of the Company is presently a party to any transaction with the Company or any of its Subsidiaries
(other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation, partnership, trust
or other entity in which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner.
(U) DILUTIVE EFFECT. The Company understands and acknowledges that the number of shares of Common
Stock issuable upon purchases pursuant to this Agreement will increase in certain circumstances
including, but not necessarily limited to, the circumstance wherein the trading price of the Common
Stock declines during the period between the Effective Date and the end of the Open Period. The
Company’s executive officers and directors have studied and fully understand the nature of the
transactions contemplated by this Agreement and
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
17
recognize that they have a potential dilutive
effect on the shareholders of the Company. Upon each delivery of a Put Notice in accordance with
this Agreement, the Board of Directors of the Company will have concluded, in its good faith
business judgment, and with full understanding of the implications, that such issuance is in the
best interests of the Company. The Company specifically
acknowledges that, subject to such limitations as are expressly set forth in the Equity Line
Transaction Documents, its obligation to issue shares of Common Stock upon its delivery of a Put
Notice (in its sole discretion) pursuant to this Agreement is absolute and unconditional regardless
of the dilutive effect that such issuance may have on the ownership interests of other shareholders
of the Company.
(V) LOCK-UP. The Company shall cause its officers and directors to refrain from selling Common
Stock during each Pricing Period.
(W) NO GENERAL SOLICITATION. Neither the Company, nor any of its affiliates, nor any person acting
on its behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of the Common Stock to be offered as
set forth in this Agreement.
(X) NO BROKERS, FINDERS OR FINANCIAL ADVISORY FEES OR COMMISSIONS. No brokers, finders or
financial advisory fees or commissions will be payable by the Company, its agents or Subsidiaries,
with respect to the transactions contemplated by this Agreement, except as otherwise disclosed in
this Agreement.
SECTION 5. COVENANTS OF THE COMPANY
(A) BEST EFFORTS. The Company shall use all commercially reasonable efforts to timely satisfy each
of the conditions set forth in Section 8 of this Agreement.
(B) BLUE SKY. The Company shall, at its sole cost and expense, on or before each of the Closing
Dates, take such action as the Company shall reasonably determine is necessary to qualify the
Securities for, or obtain exemption for the Securities for, sale to the Investor at each of the
Closings pursuant to this Agreement under applicable securities or “Blue Sky” laws of such states
of the United States, as reasonably specified by the Investor, and shall provide evidence of any
such action so taken to the Investor on or prior to the Closing Date.
(C) REPORTING STATUS. Beginning on the Execution Date and ending on the last day of the Open
Period, the Company shall file all reports required to be filed with the SEC pursuant to the 1934
Act, and the Company shall not terminate its
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
18
status, or take an action or fail to take any action,
which would terminate its status as a reporting company under the 1934 Act.
(D) USE OF PROCEEDS. The Company will use the proceeds from the sale of the Securities (excluding
amounts paid by the Company for fees as set forth in the Equity Line Transaction Documents) for
general corporate and working capital purposes and acquisitions of assets, businesses or operations
or for other
purposes that the Board of Directors, in its good xxxxx xxxx to be in the best interest of the
Company.
(E) FINANCIAL INFORMATION. During the Open Period, the Company agrees to make available to the
Investor via the SEC’s XXXXX website or other electronic means the following documents and
information on the forms set forth: (I) within five (5) Trading Days after the filing thereof with
the SEC, a copy of its Annual Reports on Form 10-K, its Quarterly Reports on Form 10-Q, any Current
Reports on Form 8-K and any Registration Statements or amendments filed pursuant to the 1933 Act;
(II) copies of any notices and other information made available or given to the shareholders of the
Company generally, contemporaneously with the making available or giving thereof to the
shareholders; and (III) within two (2) calendar days of filing or delivery thereof, copies of all
documents filed with, and all correspondence sent to, the Principal Market, any securities exchange
or market, or the Financial Industry Regulatory Authority, unless such information is material
nonpublic information.
(F) RESERVATION OF SHARES. The Company shall reserve 15,024,685 Shares for the issuance of the
Securities to the Investor as required hereunder. In the event that the Company determines that it
does not have a sufficient number of authorized shares of Common Stock to reserve and keep
available for issuance as described in this Section 5(F), the Company shall use all commercially
reasonable efforts to increase the number of authorized shares of Common Stock by seeking
shareholder approval for the authorization of such additional shares.
(G) LISTING. The Company shall promptly secure and maintain the listing of all of the Registrable
Securities (as defined in the Registration Rights Agreement) on the Principal Market and each other
national securities exchange and automated quotation system, if any, upon which shares of Common
Stock are then listed (subject to official notice of issuance) and shall maintain, such listing of
all Registrable Securities from time to time issuable under the terms of the Equity Line
Transaction Documents. Neither the Company nor any of its Subsidiaries shall take any action which
would be reasonably expected to result in the Common Stock failing to be listed on any Principal
Market. The Company shall promptly provide to the Investor copies of any notices it receives from
the Principal Market regarding the continued eligibility of the Common Stock for listing on such
automated quotation system or securities exchange. The
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
19
Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section 5(G).
(H) TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall cause each of its Subsidiaries
not to, enter into, amend, modify or supplement, or permit any Subsidiary to enter into, amend,
modify or supplement, any agreement, transaction, commitment or arrangement with any of its or any
Subsidiary’s officers, directors, persons who were officers or directors at any time
during the previous two (2) years, shareholders who beneficially own 5% or more of the Common
Stock, or Affiliates or with any individual related by blood, marriage or adoption to any such
individual or with any entity in which any such entity or individual owns a 5% or more beneficial
interest (each a “Related Party”), except for (I) customary employment arrangements and benefit
programs on reasonable terms, (II) any agreement, transaction, commitment or arrangement on an
arms-length basis on terms no less favorable than terms which would have been obtainable from a
disinterested third party other than such Related Party, or (III) any agreement, transaction,
commitment or arrangement which is approved by a majority of the disinterested directors of the
Company. For purposes hereof, any director who is also an officer of the Company or any Subsidiary
of the Company shall not be a disinterested director with respect to any such agreement,
transaction, commitment or arrangement. “Affiliate” for purposes hereof means, with respect to any
person or entity, another person or entity that, directly or indirectly, (I) has a 5% or more
equity interest in that person or entity, (II) has 5% or more common ownership with that person or
entity, (III) controls that person or entity, or (IV) is under common control with that person or
entity. “Control” or “Controls” for purposes hereof means that a person or entity has the power,
directly or indirectly, to conduct or govern the policies of another person or entity.
(I) RESERVED.
(J) CORPORATE EXISTENCE. The Company shall use all commercially reasonable efforts to preserve and
continue the corporate existence of the Company.
(K) NOTICE OF CERTAIN EVENTS AFFECTING REGISTRATION; SUSPENSION OF RIGHT TO MAKE A PUT. The Company
shall promptly notify the Investor upon the occurrence of any of the following events in respect of
a Registration Statement or related prospectus in respect of an offering of the Securities: (I)
receipt of any request for additional information by the SEC or any other federal or state
governmental authority during the period of effectiveness of the Registration Statement for
amendments or supplements to the Registration Statement or related prospectus; (II) the issuance by
the SEC or any other federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any proceedings for that purpose;
(III) receipt of any notification with respect to the suspension of
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
20
the qualification or exemption
from qualification of any of the Securities for sale in any jurisdiction or the initiation or
notice of any proceeding for such purpose; (IV) the happening of any event that makes any statement
made in such Registration Statement or related prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that requires the making of
any changes in the Registration Statement, related prospectus or documents so that, in the case of
a Registration Statement, it will not contain any untrue statement of a material fact or omit to
state any material fact required to
be stated therein or necessary to make the statements therein not misleading, and that in the case
of the related prospectus, it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and (V) the Company’s
reasonable determination that a post-effective amendment to the Registration Statement would be
appropriate, and the Company shall promptly make available to Investor any such supplement or
amendment to the related prospectus. The Company shall not deliver to Investor any Put Notice
during the continuation of any of the foregoing events in this Section 5(K).
(L) REIMBURSEMENT. If (I) the Investor becomes involved in any capacity in any action, proceeding
or investigation brought by any shareholder of the Company, in connection with or as a result of
the consummation of the transactions contemplated by the Equity Line Transaction Documents, or if
the Investor is impleaded in any such action, proceeding or investigation by any person (other
than, in each case, as a result of a breach or alleged breach of the Investor’s representations,
warranties, or covenants set forth in this Agreement); or (II) the Investor becomes involved in any
capacity in any action, proceeding or investigation brought by the SEC against or involving the
Company (unless the Company is involved in the action, proceeding or investigation as a witness
only) or in connection with or as a result of the consummation of the transactions contemplated by
the Equity Line Transaction Documents, or if the Investor is impleaded in any such action,
proceeding or investigation by any person (other than, in each case, as a result of a breach or
alleged breach of the Investor’s representations, warranties, or covenants set forth in this
Agreement), then in any such case, the Company will reimburse the Investor for its actual,
reasonable legal and other expenses (including the cost of any investigation and preparation)
incurred in connection therewith, as such expenses are incurred. In addition, other than with
respect to any matter in which the Investor is a named party, the Company will pay to the Investor
the charges, as reasonably determined by the Investor, for the time of any officers or employees of
the Investor devoted to appearing and preparing to appear as witnesses, assisting in preparation
for hearings, trials or pretrial matters, or otherwise with respect to inquiries, hearing, trials,
and other proceedings relating to the subject matter of this Agreement. The reimbursement
obligations of the Company under this section shall be in addition to any liability which the
Company may otherwise have, shall extend upon the same terms and conditions to any affiliates of
the Investor that are actually
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
21
named in such action, proceeding or investigation, and partners,
directors, agents, employees, attorneys, accountants, auditors and controlling persons (if any), as
the case may be, of Investor and any such affiliate, and shall be binding upon and inure to the
benefit of any successors of the Company, the Investor and any such affiliate and any such person.
However, in all events, if the Investor is found to be guilty of violations of the federal or state
securities laws (or pleads “no contest” or other similar plea or settles an investigation or
pleading without a specific finding of liability but is still subject to civil or criminal
liability),
the Company will have no responsibility to pay any of the Investor’s fees and expenses or any other
amounts pursuant to this Section 5(L) regardless of whether or not the Company is or is also found
to have liability.
(M) TRANSFER AGENT. Upon effectiveness of the Registration Statement, and for so long as the
Registration Statement is effective, the Company shall deliver instructions to its transfer agent
to issue Shares to the Investor that are covered for resale by the Registration Statement free of
restrictive legends.
(N) ACKNOWLEDGEMENT OF TERMS. The Company hereby represents and warrants to the Investor that: (i)
it is voluntarily entering into this Agreement of its own freewill, (ii) it is not entering this
Agreement under economic duress, (iii) the terms of this Agreement are reasonable and fair to the
Company, and (iv) the Company has had independent legal counsel of its own choosing review this
Agreement, advise the Company with respect to this Agreement, and represent the Company in
connection with this Agreement.
SECTION 6. INTENTIONALLY OMITTED
SECTION 7. CONDITIONS OF THE COMPANY’S OBLIGATION TO SELL.
With respect to each Put Notice (if any) delivered by the Company to the Investor pursuant to
Section 2(B), and in addition to the other terms and conditions of this Agreement, the obligation
hereunder of the Company to issue and sell the Shares described in such Put Notice to the Investor
is further subject to the satisfaction, at or before the applicable Closing Date, of each of the
following conditions set forth below. These conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion.
(A) The Investor shall have executed this Agreement and the Registration Rights Agreement and
delivered the same to the Company.
(B) The Investor shall have delivered to the Company the Purchase Price for the Securities being
purchased by the Investor between the end of the Pricing Period and the Closing Date via a Put
Settlement Sheet. After receipt of confirmation of delivery of such Securities to the Investor, the
Investor, by wire transfer of
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
22
immediately available funds pursuant to the wire instructions
provided by the Company, shall have disbursed the funds constituting the Purchase Amount.
(C) The representations and warranties of the Investor set forth in the Equity Line Transaction
Documents shall be true and correct as of the date when made and as of the applicable Closing Date
as though made at that time and the Investor shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Equity Line Transaction Documents to be
performed, satisfied or complied with by the Investor on or before such Closing Date.
(D) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions contemplated by this
Agreement.
(E) The Common Stock shall be listed or authorized for quotation on a Principal Market and trading
in the Common Stock shall not have been suspended by the Principal Market or the SEC as of the
respective Closing Date.
(F) The Registration Statement shall be effective on such Closing Date and no stop order
suspending the effectiveness of the Registration Statement shall be in effect or to the Company’s
knowledge shall be pending or threatened. Furthermore, on such Closing Date (I) neither the Company
nor the Investor shall have received notice that the SEC has issued or intends to issue a stop
order with respect to such Registration Statement or that the SEC otherwise has suspended or
withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or
intends or has threatened to do so (unless the SEC’s concerns have been addressed and Investor is
reasonably satisfied that the SEC no longer is considering or intends to take such action), and
(II) no other suspension of the use or withdrawal of the effectiveness of such Registration
Statement or related prospectus shall exist.
SECTION 8. FURTHER CONDITIONS OF THE INVESTOR’S OBLIGATION TO PURCHASE.
The obligation of the Investor hereunder to purchase Shares is subject to the satisfaction, on or
before each Closing Date, of each of the following conditions set forth below.
(A) The Company shall have executed the Equity Line Transaction Documents and delivered the same to
the Investor.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
23
(B) The Common Stock shall be listed or authorized for quotation on a Principal Market and trading
in the Common Stock shall not have been suspended by the Principal Market or the SEC as of the
respective Closing Date.
(C) The representations and warranties of the Company set forth in the Equity Line Transaction
Documents shall be true and correct as of the date when made and as of the applicable Closing Date
as though made at that time and the Company shall have performed, satisfied and complied with the
covenants, agreements and conditions required by the Equity Line Transaction Documents to be
performed, satisfied or complied with by the Company on or before such Closing Date. The Investor
may request an update as of such Closing Date regarding the representation contained in Section
4(C) above.
(D) The Company shall have executed and delivered to the Investor the certificates representing, or
have executed electronic book-entry transfer of, the Securities (in such denominations as the
Investor shall request) being purchased by the Investor at such Closing.
(E) The Board of Directors of the Company shall have adopted resolutions consistent with Section
4(B)(II) above (the “Resolutions”) and such Resolutions shall not have been amended or rescinded
prior to such Closing Date.
(F) Reserved
(G) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or endorsed by any court or governmental authority of competent
jurisdiction which prohibits the consummation of any of the transactions contemplated by this
Agreement.
(H) The Registration Statement shall be effective on each Closing Date and no stop order suspending
the effectiveness of the Registration Statement shall be in effect or to the Company’s knowledge
shall be pending or threatened. Furthermore, on each Closing Date (I) neither the Company nor the
Investor shall have received notice that the SEC has issued or intends to issue a stop order with
respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the
effectiveness of such Registration Statement, either temporarily or permanently, or intends or has
threatened to do so (unless the SEC’s concerns have been addressed and Investor is reasonably
satisfied that the SEC no longer is considering or intends to take such action), and (II) no other
suspension of the use or withdrawal of the effectiveness of such Registration Statement or related
prospectus shall exist.
(I) At the time of each Closing, the Registration Statement (including information or documents
incorporated by reference therein) and any amendments or supplements thereto shall not contain any
untrue statement of a material fact or
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
24
omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or which would require public
disclosure or an update supplement to the prospectus.
(J) If applicable, the shareholders of the Company shall have approved the issuance of any Shares
in excess of the Maximum Common Stock Issuance in accordance with Section 2(H) or the Company shall
have obtained appropriate approval pursuant to the requirements of Michigan law and the Company’s
Articles of Incorporation and By-laws.
(K) The conditions to such Closing set forth in Section 2(E) shall have been satisfied on or before
such Closing Date.
(L) The Company shall have certified to the Investor the number of Shares of Common Stock
outstanding when a Put Notice is given to the Investor. The Company’s delivery of a Put Notice to
the Investor constitutes the Company’s certification of the existence of the necessary number of
shares of Common Stock reserved for issuance.
SECTION 9. TERMINATION. This Agreement shall terminate upon any of the following events:
(I) when the Investor has purchased an aggregate of fifteen million dollars ($15,000,000) of the
Common Stock of the Company pursuant to this Agreement; or,
(II) on the date which is thirty-six (36) months after the Effective Date; or,
(III) upon written notice of the Company to the Investor, which may be given at any time and for
any or no reason.
Any and all Put Shares Due or penalties, if any, due under this Agreement shall be immediately
payable and due upon termination of this Agreement.
SECTION 10. SUSPENSION
The Company’s right to Put Shares, and the Investor’s obligation to purchase Shares under this
Agreement shall be suspended upon any of the following events, and shall remain suspended until
such event is rectified:
(I) the trading of the Common Stock is suspended by the SEC, a Principal Market or FINRA for
a period of two (2) consecutive Trading Days during the Open Period; or,
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
25
(II) The resale of the Common Stock ceases to be registered under the 1933 Act or listed or
traded on any Principal Market. Immediately upon the occurrence of one of the above-described
events, the Company shall send written notice of such event to the Investor.
SECTION 11. INDEMNIFICATION.
In consideration of the parties’ mutual obligations set forth in the Equity Line Transaction
Documents, each of the parties (in such capacity, an “Indemnitor”) shall defend, protect, indemnify
and hold harmless the other and all of the other party’s shareholders, officers, directors,
employees, counsel, and direct or indirect investors and any of the foregoing person’s agents or
other representatives (including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any
and all actual actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to the action for
which indemnification hereunder is sought), and including actual reasonable attorneys’ fees and
disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or
arising out of, or relating to (I) any material misrepresentation or breach of any representation
or warranty made by the Indemnitor in the Equity Line Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby; (II) any material breach of any
covenant, agreement or obligation of the Indemnitor contained in the Equity Line Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby; or (III)
any cause of action, suit or claim brought or made against such Indemnitee by a third party
alleging such a material misrepresentation or breach by the Indemnitor of the nature described in
clauses (I) and (II) of this sentence; except (in each case) insofar as any such misrepresentation,
breach or any untrue statement, alleged untrue statement, omission or alleged omission is made in
reliance upon and in conformity with information furnished to Indemnitor which is specifically
intended for use in the preparation of any Registration Statement or Prospectus. To the extent
that the foregoing undertaking by the Indemnitor may be unenforceable for any reason, the
Indemnitor shall make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Except to the extent limited by
Section 2(I) above, the indemnity provisions contained herein shall be in addition to any cause of
action or similar rights Indemnitor may have, and any liabilities the Indemnitor or the Indemnitees
may be subject to.
SECTION 12.
(A) GOVERNING LAW; DISPUTES SUBMITTED TO ARBITRATION. All disputes arising under this agreement
shall be governed by and interpreted in accordance with the laws of the State of New York, without
regard to principles of
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
26
conflict of laws. The parties to this agreement will submit all disputes
arising under this agreement to arbitration. If the Company initiates the dispute, the arbitration
shall be heard in Boston, Massachusetts, and if the Investor initiates the dispute, the arbitration
shall be heard in Grand Rapids, Michigan, in each case before a single arbitrator of the American
Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of
the AAA, or by mutual agreement of the parties. No party to this Agreement will challenge the
jurisdiction or venue provisions as provided in this section. Nothing contained herein shall
prevent either party from obtaining injunctive relief.
(B) LEGAL FEES; AND MISCELLANEOUS FEES. Except as otherwise set forth in the Equity Line
Transaction Documents, each party shall pay the fees and expenses of its advisers, counsel, the
accountants and other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this Agreement. The Company
shall pay
all stamp and other taxes and duties levied in connection with the issuance of any Securities.
(C) COUNTERPARTS. This Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party; provided that a facsimile
signature shall be considered due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original signature.
(D) HEADINGS; SINGULAR/PLURAL; INTERPRETATION. The headings of this Agreement are for convenience
of reference and shall not form part of, or affect the interpretation of, this Agreement. Whenever
required by the context of this Agreement, the singular shall include the plural and masculine
shall include the feminine. The use of the word “including” in this Agreement shall be by way of
example rather than by limitation.
(E) SEVERABILITY. If any provision of this Agreement shall be held invalid or unenforceable under
applicable law, such invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement.
(F) ENTIRE AGREEMENT; AMENDMENTS. This Agreement is the FINAL AGREEMENT between the Company and the
Investor with respect to the terms and conditions set forth herein, and, the terms of this
Agreement may not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of the Parties. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Investor, and no provision hereof may be waived
other than by an instrument in writing signed by the party against whom enforcement is sought.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
27
(G) NOTICES. Any notices or other communications required or permitted to be given under the terms
of this Agreement must be in writing and will be deemed to have been delivered (I) upon receipt,
when delivered personally; (II) upon receipt, when sent by facsimile or email with the signed
document attached in PDF format (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (III) one (1) day after deposit
with a nationally recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such communications shall be:
If to the Company:
Independent Bank Corporation
000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Investor:
Dutchess Opportunity Fund, II, LP
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Each party shall provide five (5) days prior written notice to the other party of any change in
address or facsimile number.
(H) NO ASSIGNMENT. Neither this Agreement nor any of the rights or obligations of the parties
pursuant to this Agreement may be assigned or delegated, in whole or in part.
(I) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto
and is not for the benefit of, nor may any provision hereof be enforced by, any other person,
except that the Company acknowledges that the rights of the Investor may be enforced by its general
partner.
(J) SURVIVAL. The indemnification provisions set forth in Section 11, shall survive each of the
Closings and the termination of this Agreement.
(K) PUBLICITY. The Company and the Investor shall consult with each other in issuing any press
releases or otherwise making public statements with respect to
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
28
the transactions contemplated hereby
and no party shall issue any such press release or otherwise make any such public statement without
the prior consent of the other party, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required by law, in which such
case the disclosing party shall provide the other party with prior notice of such public statement.
The Investor acknowledges that this Agreement and all or part of the Equity Line Transaction
Documents may be deemed to be “material contracts” as that term is defined by Regulation S-K, and
that the Company may therefore be required to file such documents as exhibits to reports or
registration statements filed under the 1933 Act or the 1934 Act. The Investor further agrees that
the status of such documents and materials as material contracts shall be determined solely by the
Company, in consultation with its counsel.
(L) FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes of this Agreement
and the consummation of the transactions contemplated hereby.
(M) RESERVED.
(N) NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict construction will be
applied against any party, as the parties mutually agree that each has had a full and fair
opportunity to review this Agreement and seek the advice of counsel on it.
(O) REMEDIES. The Investor shall have all rights and remedies set forth in this Agreement and the
Registration Rights Agreement and all rights and remedies which such holders have been granted at
any time under any other agreement or contract and all of the rights which the Investor has by law.
Any person having any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover damages by reason
of any default or breach of any provision of this Agreement, including the recovery of reasonable
attorneys fees and costs, and to exercise all other rights granted by law. As it applies to
Investor, this Section 12(O) is subject to the limitations described in Section 2(I) above.
(P) PAYMENT SET ASIDE. To the extent that the Company makes a payment or payments to the Investor
hereunder or under the Registration Rights Agreement or the Investor enforces or exercises its
rights hereunder or thereunder, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof are subsequently invalidated, declared to be fraudulent or
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
29
preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or
otherwise restored to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.
(Q) PRICING OF COMMON STOCK. For purposes of this Agreement, the VWAP shall be as reported by
Bloomberg LP or any nationally recognized quotation system with live quotation feeds.
SECTION 13. NON-DISCLOSURE OF NON-PUBLIC INFORMATION.
(a) The Company shall not disclose material non-public information to the Investor, its advisors,
or its representatives.
(b) Nothing herein shall require the Company to disclose non-public information to the Investor or
its advisors or representatives, and the Company represents that it does not disseminate material
non-public information to any investors who purchase stock in the Company in a public offering, to
money managers or to securities analysts, provided, however, that notwithstanding anything herein
to the contrary, the Company will, as hereinabove provided, immediately notify the Investor of any
event or the existence of any circumstance (without any obligation to disclose the specific event
or circumstance) of which it becomes aware, constituting non-public information (whether or not
requested of the Company specifically or generally during the course of due diligence by the
Investor), which, if not disclosed in the prospectus included in the Registration Statement would
cause such prospectus to include a material misstatement or to omit a material fact required to be
stated therein in order to make the statements, therein, in light of the circumstances in which
they were made, not misleading.
ARTICLE 14 ACKNOWLEDGEMENTS OF THE PARTIES.
Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby acknowledge
and agree to the following: (i) the Investor makes no representations or covenants that it will not
engage in trading in the securities of the Company, other than as set forth in Section 3(C) of this
Agreement; (ii) the Company has not and shall not provide material non-public information to the
Investor unless prior thereto the Investor shall have executed a written agreement regarding the
confidentiality and use of such information; (iii) the Company understands and confirms that the
Investor will be relying on the acknowledgements set forth in clauses (i) and (ii) above if the
Investor effects any transactions in the securities of the Company; (iv) the Company has no
obligation to ever submit any Put Notice to the Investor or otherwise exercise its
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
30
right to sell
Shares of its Common Stock to the Investor pursuant to this Agreement; (v) the Common Stock is
listed on the Nasdaq Global Select Market as of the Execution Date, but any delisting of the Common
Stock from such Principal Market or from any Principal Market on which the Common Stock may be
listed or quoted after the Execution Date shall not be deemed a breach of this Agreement or the
failure of a condition precedent to the parties’ respective obligations pursuant to this Agreement
as long as the Common Stock is listed or quoted on at least one Principal Market; and (vi) if the
number of shares of Common Stock outstanding changes by reason of a reverse stock split, stock
dividend, stock split, or similar recapitalization, the number of Shares set forth in Sections
2(H), 4(D), and 5(F) of this Agreement shall be adjusted appropriately.
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
31
SIGNATURE PAGE OF INVESTMENT AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by the terms and
conditions of the Investment Agreement and the Registration Rights Agreement as of the date first
written above.
The undersigned signatory hereby certifies that he has read and understands the Investment
Agreement, and the representations made by the undersigned in this Investment Agreement are true
and accurate, and agrees to be bound by its terms.
DUTCHESS OPPORTUNITY FUND, II, LP | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxxx
|
|||||
Xxxxxxx X. Xxxxxxxx | ||||||
Managing Member of: | ||||||
Dutchess Capital Management, II, LLC; | ||||||
General Partner to: | ||||||
Dutchess Opportunity Fund, II, LP | ||||||
INDEPENDENT BANK CORPORATION | ||||||
By: | /s/ Xxxxxxx X. Xxxxx Xx.
|
|||||
Xxxxxxx X. Xxxxx Xx. | ||||||
Chief Executive Officer and President | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
Xxxxxx X. Xxxxxxx | ||||||
Chief Financial Officer and Executive VP |
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
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LIST OF EXHIBITS
EXHIBIT A
|
Registration Rights Agreement | |
EXHIBIT B
|
Notice of Effectiveness of Registration Statement | |
EXHIBIT C
|
Put Notice | |
EXHIBIT D
|
Put Settlement Sheet |
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
33
EXHIBIT A
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
34
EXHIBIT B
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
OF REGISTRATION STATEMENT
Date:
[TRANSFER AGENT]
Re: | INDEPENDENT BANK CORPORATION. |
Ladies and Gentlemen:
We are counsel to Independent Bank Corporation, a Michigan corporation (the “Company”), and
have represented the Company in connection with that certain Investment Agreement (the “Investment
Agreement”) entered into by and among the Company and Dutchess Opportunity Fund, II, LP (the
“Investor”) pursuant to which the Company has agreed to issue to the Investor shares of the
Company’s common stock, no par value per share (the “Common Stock”), on the terms and conditions
set forth in the Investment Agreement. Pursuant to the Investment Agreement, the Company also has
entered into a Registration Rights Agreement with the Investor (the “Registration Rights
Agreement”) pursuant to which the Company agreed, among other things, to register the Registrable
Securities (as defined in the Registration Rights Agreement), including the shares of Common Stock
issued or issuable under the Investment Agreement under the Securities Act of 1933, as amended (the
“1933 Act”). In connection with the Company’s obligations under the Registration Rights Agreement,
on ______, 20___ the Company filed a Registration Statement on Form S- ___ (File No. 333-______)
(the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) relating to
the Registrable Securities which names the Investor as a selling shareholder thereunder.
In connection with the foregoing, we advise you that [a member of the SEC’s staff has
advised us by telephone that the SEC has entered an order declaring the Registration Statement
effective] [the Registration Statement has become effective] under the 1933 Act at
[enter the time of effectiveness] on [enter the date of effectiveness] and to the
best of our knowledge, after telephonic inquiry of a member of the SEC’s staff, no stop order
suspending its effectiveness has been issued and no proceedings for that purpose are pending
before, or threatened by, the SEC and the Registrable Securities are available for resale under the
1933 Act pursuant to the Registration Statement.
Very truly yours,
[Company Counsel]
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
35
EXHIBIT C
Date:
RE: Put Notice Number ___
Dear Xx. Xxxxxxxx,
This is to inform you that as of today, Independent Bank Corporation, a Michigan corporation (the
“Company”), hereby elects to exercise its right pursuant to the Investment Agreement to require
Dutchess Opportunity Fund, II, LP to purchase shares of its common stock. The Company hereby
certifies that:
The Put Amount for this Put is $ .
The Pricing Period for this Put runs from until
.
The Suspension Price for this Put is $ (per Share).
The number of Shares of the Company’s Common Stock issued and outstanding as of the date of this
Put Notice is:
The number of Shares of the Company’s Common Stock currently available for issuance pursuant to the
Registration Statement is:
Regards,
Independent Bank Corporation
Name:
Title:
Title:
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
36
EXHIBIT D
PUT SETTLEMENT SHEET
PUT SETTLEMENT SHEET
Date:
Dear ______,
Pursuant to the Put Notice given by Independent Bank Corporation, to Dutchess Opportunity Fund, II,
LP on
20___, we are now submitting the amount of common shares for you to issue to
Dutchess.
Please have a certificate bearing no restrictive legend totaling
shares issued to
Dutchess Opportunity Fund, II, LP immediately and send via DWAC to the following account:
XXXXXX
If not DWAC eligible, please send FedEx Priority Overnight to:
XXXXXX
Once these shares are received by us, we will have funds in the amount of the Purchase Amount wired
to the Company.
Regards,
Xxxxxxx X. Xxxxxxxx
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
37
DATE |
VWAP | |||
Day 1 |
||||
Day 2 |
||||
Day 3 |
||||
Day 4 |
||||
Day 5 |
||||
Lowest VWAP |
||||
PUT AMOUNT |
||||
AMOUNT WIRED TO COMPANY |
||||
PURCHASE PRICE (95%) |
||||
AMOUNT OF SHARES DUE |
||||
The undersigned has completed this Put as of this ___th day of
, 20 .
Independent Bank Corporation
Name:
Title:
Title:
Independent Bank Corporation.INVESTMENT.AGREEMENT.July.2010.
38