Exhibit 10.3
SUBSCRIPTION AND PURCHASE AGREEMENT
(Common Stock)
Macatawa Bank Corporation
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To:
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Macatawa Bank
Corporation
Attn: Chief Financial Officer
10753 Macatawa Drive
Holland, MI 49424
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Re:
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Common Stock -
If you wish to subscribe, please sign and return this Subscription
Agreement and the attached Accredited Investor
Questionnaire
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1.
SUBSCRIPTION . The undersigned (the
“Subscriber”) hereby offers and agrees to purchase, and
to pay for such number of shares as is set forth on the signature
page hereof (the “Shares”), of common stock (the
“Common Stock”) of Macatawa Bank Corporation (the
“Company”). The Subscriber hereby specifically accepts
and adopts and consents to be bound by each and every provision of
this Subscription and Purchase Agreement (“Agreement”).
The Subscriber shall pay for the Shares at the price of $_______
per Share, in good funds (e.g. cashier’s check, personal
check or wire transfer), and for that purpose agrees to tender upon
request an amount equal to the total Dollar Amount of Subscription
as set forth on the signature page hereof.
2.
ACCEPTANCE . This Agreement is made subject to the
Company’s discretionary right to accept or reject the
subscription herein. Following action by the Company, the
Subscriber will be notified as to whether the subscription has been
accepted or rejected. If the Company shall for any reason reject
all or part of this subscription, any amount already paid by the
Subscriber with respect to the rejected subscription, or part
thereof, will be promptly refunded, without interest. Acceptance of
this subscription by the Company will be evidenced by the execution
hereof by an officer of the Company.
3.
REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER . The
Subscriber hereby represents and warrants to the Company as
follows, recognizing that the information contained herein is being
furnished to the Company in order for the Company to determine
whether the Subscriber’s subscription to purchase Shares
should be accepted by the Company in light of the requirements of
Section 4(2) of the Securities Act of 1933 (the “Act”)
and the rules and regulations promulgated thereunder, similar
sections of the securities laws of various states, and other
relevant factors. The Subscriber understands that (a) the Company
will rely on the information contained herein for purposes of such
determination, (b) the Shares will not be registered under the Act
in reliance upon exemptions from registration afforded under the
Act, which may include Regulation D promulgated thereunder
(“Regulation D”), and (c) the Shares, at the time of
sale described herein, will not be registered and/or qualified
under any state securities laws.
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A.
Advisors . Subscriber acknowledges that he, she or it
has been advised to consult with their own attorney regarding legal
matters concerning the Company and the Shares and to consult with
its tax advisor regarding the tax consequences of acquiring the
Shares.
B. Access
to SEC Filings . Subscriber acknowledges that he, she or it
has been permitted access, to the Subscriber’s satisfaction,
to the Company’s public filings made pursuant to the
Securities Exchange Act of 1934, as amended, which access can be
gained at http://www.sec.gov, http://www.gsionline.com,
http://www.freeedgar.com and http://www.10kwizard.com. By entering
into this Agreement, the undersigned Subscriber acknowledges
receipt of the Company’s Annual Report on 10-K for the year
ended December 31, 2008, the Quarterly Report on Form 10-Q for the
quarter ended March 31, 2009, and the proxy statement for the 2009
annual meeting
C. Shares
Not Registered . Subscriber understands that the Shares
have not been registered under the Securities Act or any other
Securities laws but are being offered and sold to Subscribers in
reliance upon specific exemptions from the registration
requirements of Federal and State securities laws and that the
Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and
understandings of Subscriber set forth herein in order to determine
the applicability of such exemptions and the suitability of
Subscribers to acquire the Shares.
D.
Investment Experience . The Subscriber is a
sophisticated, accredited and experienced investor with regard to
high-risk investments in restricted securities of the sort referred
to herein, and is willing and able to bear the economic risk of an
investment in the Shares in an amount equal to the amount the
Subscriber has subscribed to purchase. The Subscriber has adequate
means of providing for current needs and personal contingencies,
has no need for liquidity in the investment, and is able to bear
the economic risk of an investment in the Company of the size
contemplated. In making this statement, the Subscriber considered
whether the Subscriber could afford to hold the Shares for an
indefinite period and whether, at this time, the Subscriber could
afford a complete loss of an investment in the Shares.
E.
Accredited Investor Status . The Subscriber has
submitted to the Company a complete and executed “Accredited
Investor Questionnaire” substantially in the form attached
hereto as Exhibit A . The Subscriber hereby certifies that he,
she or it is an “Accredited Investor”, as that term is
defined under Rule 501(a) of the Securities Act and all information
which the Subscriber has provided to the Company in the Accredited
Investor Questionnaire is correct and complete as of the date set
forth thereon. The Subscriber is aware that the sale of the
Securities is being made in reliance on Rule 506 of Regulation D,
an exemption for non-public offerings under Section 4(2) of the
Securities Act.
F. Purchase
for Own Account . The Subscriber’s purchase of the
Shares will be solely for the Subscriber’s own account and
not for the account of any other person.
G.
Investment Purpose . The Shares are being acquired by
the Subscriber in good faith for investment and not with a view to
distributing such Shares to others or otherwise reselling said
Shares or any portion thereof. The Subscriber understands that the
substance of the above representations is (i) that the Subscriber
does not presently intend to sell or otherwise dispose of all or
any part of the Shares; (ii) that the Subscriber does not now have
in mind the sale or other
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disposition of all or any part of
the Shares on the occurrence or nonoccurrence of any predetermined
event; and (iii) that the Company is relying upon the truth and
accuracy of the representations.
H.
Investment Risks . The Subscriber understands that
the purchase of the Shares is subject to risks as stated in the
Risk Factors included as Exhibit B hereto, the Risk Factors
disclosed in the Company’s SEC filings or as otherwise may be
applicable to similar investments. The Subscriber acknowledges that
he, she or it has had an opportunity to review, and upon review,
fully understands the Risk Factors contained in Exhibit B hereto
and also the Risk Factors disclosed in the Company’s SEC
filings.
I. Due
Diligence . The Subscriber has relied solely upon this
Subscription Agreement and the independent investigations made by
the Subscriber with respect to the Shares subscribed for herein,
and no oral or written representations beyond the Company’s
SEC filings have been made to or been relied upon by the
Subscriber.
J.
Representations Complete . The Subscriber’s
representations in this Agreement are complete and accurate to the
best of the Subscriber’s knowledge, and the Company and its
agents may rely upon them. The Subscriber will notify the Company
and any such agent immediately if any material change occurs in any
of this information before the sale of the Shares.
K. Transfer
Restrictions and Resale . The Shares have not been
registered with the Securities and Exchange Commission. The Shares
may be sold or transferred only in compliance with the applicable
securities laws and regulations, including the Securities Act of
1933, as amended (the “Act”). The Shares purchased by
Subscriber will be “restricted securities” for purposes
of SEC Rule 144 under the Act. The Subscriber agrees to comply with
Rule 144 which permits public resales of common stock by persons
not affiliated with the Company only if the shares have been held
for at least six months. Subscriber acknowledges that due to the
Share’s status as “restricted securities” it may
not be possible to liquidate the undersigned’s investment in
the Company during Rule 144‘s six month holding period (the
holding period is one year if the Subscriber is deemed to be an
“affiliate” of the Company).
L. SEC
Disclosure . The Subscriber understands that any investor
individually, or acting as part of a group who acquires beneficial
ownership of more than 5.0% of the Company’s common stock
will be required to file a Schedule 13G or a Schedule 13D with the
Securities and Exchange Commission.
M. Federal
Reserve Board Approval . The Subscriber understands that an
acquisition of the Company’s common stock in an amount that
would cause such holder to beneficially own more than 9.9% of the
Company’s common stock outstanding at such time will be
subject to the Change in Bank Control Act, Regulation Y and related
rules and regulations and would require notices filings and Federal
Reserve Board advance approval under applicable banking laws and
regulations.
N.
Legend . The Subscriber understands and agrees that
stop transfer instructions relating to the Shares will be placed in
the Company’s stock transfer ledger, and that the
certificates evidencing such securities will bear legends in
substantially the following form:
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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) AND ARE
“RESTRICTED SECURITIES” AS THAT TERM IS DEFINED IN RULE
144 UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE ISSUER.”
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Please refer to Section K. above
for additional information about transfer restrictions and resale
procedures.
O. Binding
Obligation . This Agreement when fully executed and
accepted by the Company will constitute a valid and legally binding
obligation of the Subscriber, enforceable in accordance with its
terms except (a) as its obligations may be affected by bankruptcy,
insolvency, reorganization, moratorium or similar laws, or by
equitable principles relating to or limiting creditors’
rights generally and (b) that the remedies of specific performance,
injunction and other forms of equitable relief are subject to
certain tests of equity jurisdiction, equitable defenses and the
discretion of the court before which any proceeding therefore may
be brought. The Subscriber, if it is a partnership, joint venture,
corporation, trust or other entity, was not formed or organized for
the specific purpose of acquiring the Shares. The purchase of the
Shares by the Subscriber, if it is an entity, is a permissible
investment in accordance with the Subscriber’s Articles of
Incorporation, bylaws, partnership agreement, declaration of trust
or other similar charter document, and has been duly approved by
all requisite action by the entity’s owners, directors,
officers or other authorized managers. The person signing this
document and all documents necessary to consummate the purchase of
the Shares has all requisite authority to sign such documents on
behalf of the Subscriber, if it is an entity.
P. No
General Solicitation . The Shares were not offered to the
Subscriber by way of general solicitation or general advertising
and at no time was the Subscriber presented with or solicited by
means of any leaflet, public promotional meeting, circular,
newspaper or magazine article, radio or televisions
advertisement.
Q. Future
Issuances. The Company may in the future issue subordinated
debt and/or preferred stock with dividend and liquidation rights
superior to the Common Stock. The Company may in the future issue
additional shares of Common Stock.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY . In
connection with the agreement to purchase Shares by Subscriber
herein, the Company hereby represents and warrants as
follows:
A. The
Organization . The Company is a corporation duly organized
and validly existing and in good standing under the laws of the
State of Michigan and has all the requisite power and authority to
conduct its business and own and operate its properties, and to
enter into and execute this Agreement and to carry out the
transactions contemplated hereby.
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B.
Authority . The Company has the power to execute,
deliver and perform the terms and provisions of this Agreement and
has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, and to authorize the issuance
and sale of the Shares contemplated by this Agreement, and the
representatives of the Company executing this Agreement are duly
authorized to do so.
C.
Capitalization . The authorized capital stock of the
Company consists of 40,000,000 shares of Common Stock of which
17,166,515 shares were outstanding as of March 31, 2009, and
500,000 shares of preferred stock of which 31,290 shares of Series
A Noncumulative Convertible Perpetual Stock were outstanding as of
March 31, 2009.
D. Binding
Obligation . Assuming the due execution and delivery of
this Agreement by the Subscriber, this Agreement is a legal, valid
and binding obligation of the Company enforceable in accordance
with its terms except (a) as its obligations may be affected by
bankruptcy, insolvency, reorganization, moratorium or similar laws,
or by equitable principles relating to or limiting creditors’
rights