Exhibit 10.1
SUBSCRIPTION AND PURCHASE AGREEMENT
(Series B Noncumulative Convertible Perpetual Preferred
Stock)
Macatawa Bank Corporation
|
To:
|
Macatawa Bank
Corporation
Attn: Chief Financial Officer
10753 Macatawa Drive
Holland, MI 49424
|
|
|
Re:
|
Series B
Noncumulative Convertible Perpetual Preferred Stock - If you wish
to subscribe, please sign and return this Subscription Agreement
and the attached Accredited Investor Questionnaire
|
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, of Series B Noncumulative Convertible Perpetual
Preferred Stock, liquidation value of $1,000 per share (the
“Shares”) 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 $1,000 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.
CLOSING . The Company may conduct one or more
closings of the purchase and sale of the Shares (each one a
“Closing” ). Each closing shall occur at the offices of
Varnum, Riddering, Schmidt & Howlett LLP, 333 Bridge Street,
N.W., Suite 1700, Grand Rapids, Michigan 49504 on such dates or at
such other place as may be determined by the Company (each one a
“Closing Date”). In connection with each Closing, the
Company or the Company’s transfer agent will deliver to the
Subscriber the Shares, each registered in the undersigned
Subscriber’s name (or in the name of such Subscriber’s
nominees as may be specified by such Subscriber), against payment
by the Subscriber of the purchase price of the Shares.
3.
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.
4.
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
|
Confidential
Information
June 4, 2009
|
Page 1 of 36
|
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. Subscriber also represents and warrants to the
Company as follows:
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. Subscriber hereby acknowledges and agrees that Keefe,
Bruyette & Woods, Inc. has acted as financial advisor to the
Company (and not as an underwriter or placement agent for the
Shares) and has not acted as an advisor to, and does not represent,
Subscriber.
B. Private
Placement Memorandum and Access to SEC
Filings . Subscriber has received and has had a full
opportunity to review the Company’s Private Placement
Memorandum, including the description of the Shares and Risk
Factors contained therein. Subscriber acknowledges that he, she or
it has had full access 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 Form 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 the
knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of an investment in the
Shares. 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.
|
Confidential
Information
June 4, 2009
|
Page 2 of 36
|
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 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 section of the Company’s Private Placement
Memorandum, and 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 the Private Placement Memorandum and also
the Risk Factors disclosed in the Company’s SEC
filings.
I. Due
Diligence . The Subscriber has relied solely upon this
Subscription Agreement, the Company’s Private Placement
Memorandum, the Certificate of Designation, in substantially the
form attached hereto as Exhibit B , 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 resales of shares 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).
|
Confidential
Information
June 4, 2009
|
Page 3 of 36
|
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:
|
|
“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.”
|
|
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, articles of
organization, 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.
|
Confidential
Information
June 4, 2009
|
Page 4 of 36
|
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 additional
preferred stock, senior debt, subordinated debt, and/or common
stock.
R. Ranking
. Subscriber understands and agrees that the Shares will rank
junior to the Company’s previously issued Series A
Noncumulative Convertible Perpetual Preferred Stock (the
“Series A Preferred Shares”). The outstanding Series A
Preferred Shares have an aggregate liquidation amount of
$31,290,000. The fact that the Shares are junior to the Series A
Preferred Shares means that the Company may not pay to the holders
of the Shares any dividends or distribution of assets upon
liquidation or winding up of the Company unless the Company has
first paid to the holders of Series A Preferred Shares the amounts
to which the holders of Series A Preferred Shares are
entitled.
5.
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.
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 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.
E. No
Conflicts . The execution, delivery and performance of this
Agreement and the fulfillment of or compliance with the terms and
provisions hereof, including the issuance and sale of the Shares
contemplated by this Agreement, are not in contravention of or in
conflict with any contract to which the Company is a party or by
which the Company or any of its properties may be bound or
affected.
|
Confidential
Information
June 4, 2009
|
Page 5 of 36
|
F. Validly
Issued . Upon receipt by the Company of payment for the
Shares as contemplated by this Agreement and upon issuance of the
Shares in accordance with this Agreement, the Shares will be
validly issued and outstanding, fully paid and
non-assessable.
6.
REGISTRATION RIGHTS . The Company and Subscriber
agree to the registration rights, terms and obligations set forth
in Exhibit C hereto.
7.
OWNERSHIP LIMITATION . The Subscriber covenants that
he, she or it has read and agrees to the Beneficial Ownership
Limitation (NASDAQ) set forth in the Certificate of Designation set
forth in Exhibit B hereto.
8.
CONVERSION PROCEDURES . The conversion procedures
described in the Certificate of Designation, attached hereto as
Exhibit B , set forth the totality of the procedures
required by the Subscribers in order to convert the Shares. The
Company shall honor conversions of Shares and shall deliver Common
Stock in accordance with the terms, conditions and time periods set
forth in the Certificate of Designation (as applicable).
9. ENTIRE
AGREEMENT . This Agreement together with the
Confidentiality Agreement previously executed by the parties hereto
and any other documents executed contemporaneously herewith,
constitute the entire agreement between the parties with respect to
the matters covered thereby, and may only be amended by a writing
executed by all parties hereto.
10.
SURVIVAL OF REPRESENTATIONS . The representations,
warranties, acknowledgements and agreements made herein shall
survive issuance of the Shares.
11.
WAIVERS . No waiver or modification of any of the
terms of this Agreement shall be valid unless in writing. No waiver
of a breach of, or default under, any provision hereof shall be
deemed a waiver of such provision or of any subsequent breach or
default of the same or similar nature or of any provision or
condition of this Agreement.
12.
COUNTERPARTS . This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
13.
CONFIDENTIALITY AGREEMENT . The Subscriber and the
Company agree that the provisions of the Confidentiality Agreement
previously signed by them in connection with the private placement
of the Shares remains in full force and effect.
14.
NOTICES . Except as otherwise required in this
Agreement, any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given
upon personal delivery or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid, addressed
to the last known address of the party.
|
Confidential
Information
June 4, 2009
|
Page 6 of 36
|
15.
NON-ASSIGNABILITY . The obligations of a party
hereunder shall not be delegated or assigned to any other party
without the prior written consent of the other party
hereto.
16.
GOVERNING LAW . This Subscription Agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Michigan, excluding those provisions related to the
conflict of laws of different jurisdictions if the effect of the
application of those provisions will be to require the application
of the laws of a jurisdiction other than Michigan. Each party
consents to the jurisdiction of the state of federal courts in Kent
County, Michigan, which will be the sole venue for resolution of
all disputes related to this Agreement. THE PARTIES HERETO WAIVE
THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY MATTER ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
|
Attachments:
|
Annual Report
on Form 10-K for the year ended December 31, 2008 Quarterly Report
on Form 10-Q for the quarter ended March 31, 2009 Proxy
Statement
|
IN
WITNESS WHEREOF, the Subscriber has executed this Agreement and
declares that it is truthful and correct.
[signature pages follow]
|
Confidential
Information
June 4, 2009
|
Page 7 of 36
|
INDIVIDUALS SIGN HERE :
|
(Check
One)
|
|
[__]
|
Community
Property
|
X
|
|
(Both spouses
must sign)
|
|
|
|
X
|
|
[__]
|
Individually
|
|
|
|
X
|
|
[__]
|
Joint tenants
with right of survivorship
(Both must sign)
|
|
|
|
Print Name
|
|
[__]
|
Tenants in
common
(All must sign)
|
|
|
|
Print Names
|
|
|
|
|
|
Print Names
|
|
Note:
|
Please
notify the Company
|
|
|
if you plan
to invest funds
|
Address
|
|
in an
individual retirement
account (IRA).
|
|
|
|
Address
|
|
|
|
|
|
Telephone Number
|
|
|
|
|
|
Social Security Number
|
|
Number of
Shares Subscribed for Purchase:
|
|
|
|
|
Dollar Amount of Subscription:
($1,000 per Share)
|
|
|
|
(write out
dollar amount)
Date: _______________, 2009
|
Signature Page for Individuals
|
Confidential
Information
June 4, 2009
|
Page 8 of 36
|
ENTITIES SIGN HERE:
|
[__]
|
Partnerships or
Limited
|
|
|
Liability
Company
|
Print Partnership or LLC
Name
|
|
|
By:
|
|
|
Authorized Signature
|
|
[__]
|
Corporation
|
|
|
|
Print Corporate Name
|
|
|
By:
|
|
|
Authorized Signature
|
|
|
Title:
|
|
|
|
|
|
[__]
|
As Custodian,
Trustee or Agent
|
|
|
|
Print Name
|
|
|
By:
|
|
|
Authorized Signature
|
|
|
|
|
|
Title, if applicable
|
|
All Entities
Complete
|
|
|
|
Address
|
|
|
|
|
|
Address
|
|
|
|
|
|
Telephone Number
|
|
|
Tax I.D.
No.:
|
|
|
Number of Shares Subscribed for Purchase:
|
|
|
|
|
|
Dollar Amount Subscribed for:
($1,000 per Share)
|
|
|
|
|
Date:
___________, 2009
|
(write out
dollar amount)
|
Signature Page for Entities
|
Confidential
Information
June 4, 2009
|
Page 9 of 36
|
PAYER'S NAME: MACATAWA BANK
CORPORATION
|
SUBSTITUTE
Form W-9
Department of the Treasury
Internal Revenue Service
Payer's Request for Taxpayer
Identification Number
(See Instruction No. 7)
Please fill in your name and address below:
|
Part
1 - TAXPAYER
IDENTIFICATION NO. - FOR ALL ACCOUNTS ENTER YOUR TAXPAYER
IDENTIFICATION NUMBER ON THE APPROPRIATE LINE. FOR MOST
INDIVIDUALS, SOLE PROPRIETORS, AND REVOCABLE TRUSTS THIS IS YOUR
SOCIAL SECURITY NUMBER. FOR OTHER ENTITIES, IT IS YOUR EMPLOYER
IDENTIFICATION NUMBER.
|
________________
Social Security Number
OR
________________
Employer Identification Number(s)
|
|
_____________________
Name
_____________________
Business name, if different from above
Check appropriate box
[_] Individual/Sole proprietor
[_] Partnership
[_] Trust
[_] Corporation
[_] Limited Liability Company. Enter tax
classification (D = disregarded entity, C =
corporation, P = partnership) _____
[_] Other ________________
[_] Exempt from backup withholding
_____________________
Address (number and street)
_____________________
City, State and Zip Code
|
Part 2 -
Certification - Under
penalties of perjury, I certify that:
(1) The number shown on the form is my correct Taxpayer
Identification
Number (or I am waiting for a number
to be issued to me) and
(2) I am not subject to backup withholding either because (a) I
am
exempt from backup withholding, or
(b) I have not been notified by
the Internal Revenue Service ("IRS")
that I am subject to backup
withholding as a result of a failure
to report all interest or
dividends, or (c) the IRS has
notified me that I am no longer
subject to backup withholding;
and
(3) I am a U.S. citizen or other person (including a U.S.
resident
alien).
Certificate Instructions - You must cross out item 2 above
if you have been notified by the IRS that you are currently subject
to backup withholding because you have failed to report all
interest and dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to backup
withholding.
SIGNATURE _____________________ DATE _______________,
2009
|
Subscribers: please complete
and sign the substitute IRS Form W-9 above.
|
Confidential
Information
June 4, 2009
|
Page 10 of 36
|
SUBSCRIPTION AND PURCHASE AGREEMENT ACCEPTED :
[__] IN FULL or [__] for
$_____________________
MACATAWA BANK CORPORATION
a Michigan Corporation
By:
________________________________
|
|
Name:
________________________
|
|
|
Title:
________________________
|
Date: ________________,
2009
|
Confidential
Information
June 4, 2009
|
Page 11 of 36
|
EXHIBIT A
MACATAWA BANK CORPORATION
ACCREDITED INVESTOR QUESTIONNAIRE
Note: Individuals must complete
SECTION I and Corporations, Partnerships, Trusts and other Entities
must complete SECTION II
ALL QUESTIONS IN THE APPROPRIATE
SECTION MUST BE ANSWERED
SECTION I. QUESTIONS FOR
INDIVIDUALS
1. Name:
___________________________________
2. U.S. Citizen: Yes____ No____
Age:___________
3. Social Security
No.:________________________
4. Accredited Investor
Suitability Requirements. An individual will qualify as an
Accredited Investor as defined in Rule 501(a) of the Securities Act
of 1933 (“Securities Act”) if he or she meets any one
of the following requirements. The undersigned entity certifies
that he/she is an Accredited Investor because:
|
Yes____
No____
|
(A) I am a
natural person and had an individual net worth on the date hereof
(or joint net worth with my spouse) in excess of $1 million
(including my home, home furnishings and automobiles).
|
|
Yes____
No____
|
(B) I am a
natural person and had an individual income in excess of $200,000
in each of the two most recent years and reasonably expect an
income in excess of $200,000 in the current year. For these
purposes “income” means my individual adjusted gross
income for federal income tax purposes, plus (i) any deduction for
long term capital gain; (ii) any deduction for depletion; (iii) any
exclusion for interest; and (iv) any losses of a partnership
allocated to an individual limited partner.
|
|
Yes____
No____
|
(C) I am a
natural person and had a joint income with my spouse in excess of
$300,000 in each of the two most recent years and reasonably expect
joint income with my spouse in excess of $300,000 in the current
year. For these purposes “income” shall be determined
as set forth in Section 4(B) above.
|
|
Confidential
Information
June 4, 2009
|
Page 12 of 36
|
SECTION II. QUESTIONS FOR
CORPORATIONS, PARTNERSHIPS, TRUSTS AND OTHER ENTITIES
1. Name of Entity:
_____________________________________________
2. Type of Entity (corporation,
partnership, LLC etc.) _____________________
3. Date of Organization:
_________________________________________
4. State of Organization:
_________________________________________
5. Federal Taxpayer
Identification No.: _____________________________
6. Accredited Investor
Suitability Requirements:
|
Yes____
No____
|
(A) Was the
entity formed for the specific purpose of investing in the
securities (as defined in Section 3(a)(10) of the Securities
Exchange Act of 1934 ((the “Exchange Act”)) or in the
equity securities (as defined in Section 3(a)(11) of the Exchange
Act) of Macatawa Bank Corporation?
|
7. If your answer to question
6(A) above is “No,” CHECK whichever of the following
statements is applicable to the entity; if your answer to question
6(A) is “Yes” or if none of the statements in clause
7(A) below is applicable, the entity must be able to certify to
statement 7(B) below in order to qualify as an Accredited Investor
.
(A) The undersigned entity
certifies that it is an Accredited Investor because it
is:
|
Yes____
No____
|
(i) a
corporation, partnership, or limited liability company, not formed
for the specific purpose of acquiring the securities or equity
securities of Macatawa Bank Corporation, with total assets in
excess of $5,000,000;
|
|
Yes____
No____
|
(ii) a bank, as
defined in Section 3(a)(2) of the Securities Act, or a savings and
loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in an individual
or fiduciary capacity;
|
|
Yes____
No____
|
(iii) a broker
or dealer registered pursuant to Section 15 of the Exchange
Act;
|
|
Yes____
No____
|
(iv) an
insurance company as defined in Section 2(13) of the Securities
Act;
|
|
Yes____
No____
|
(v) an
investment company registered under the Investment Company Act of
1940 ("1940 Act");
|
|
Yes____
No____
|
(vi) an
employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, provided that (A) the investment
decision is made by a plan fiduciary, as defined in Section 3(21)
of such
|
|
Confidential
Information
June 4, 2009
|
Page 13 of 36
|
|
|
act, and the
plan fiduciary is either a bank, insurance company or registered
investment adviser, or (B) the employee benefit plan has total
assets in excess of $5,000,000, or (C) the plan is a self-directed
plan and the investment decisions are made solely by persons that
are Accredited Investors (if self-directed plan with more than one
investment account: (1) each participant must maintain a separate
investment account within the plan, and (2) the funds of the
separate investment accounts within the plan must not be
commingled);
|
|
Yes____
No____
|
(vii) a private
business development company as defined in Section 202(a)(22) of
the 1940 Act;
|
|
Yes____
No____
|
(viii) an
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended, not formed for the specific purpose of
acquiring the securities or equity securities of Macatawa Bank
Corporation, with total assets in excess of $5,000,000;
or
|
|
Yes____
No____
|
(ix) a trust,
with total assets in excess of $5,000,000, not formed for the
specific purpose of acquiring the securities or equity securities
of Macatawa Bank Corporation, whose subscription is directed by a
sophisticated person as defined in Rule 506(b)(2)(ii) promulgated
under the Securities Act.
|
|
|
If none of
the above apply, please complete 7(B) below:
|
|
(B)
|
The undersigned
entity certifies that it is an Accredited Investor because each of
its stockholders, partners, LLC members or other equity holders
meets at least one of the following conditions:
|
|
Yes____
No____
|
(i) He/She is a
natural person and had an individual net worth (or joint net worth
with spouse) at the time of subscription in excess of $1 million
(including home, home furnishings and automobiles).
|
|
Yes____
No____
|
(ii) He/She is
a natural person and had an individual income in excess of $200,000
(or joint income with spouse in excess of $300,000) in each of the
two most recent years and reasonably expects an individual income
in excess of $200,000 (or joint income with spouse in excess of
$300,000) in the current year. For these purposes
“income” means individual adjusted gross income for
federal income tax purposes, plus (i) any deduction for long term
capital gains; (ii) any deduction for depletion; (iii) any
exclusion for interest; or
|
|
Yes____
No____
|
(iii) The
stockholder, partner or other equity holder is a corporation,
partnership, trust or other entity which meets the description of
at least one of the organizations specified in statement 7(A) above
or whose stockholders, partners or other equity holders meet at
least one of the descriptions in this statement 7(B).
|
|
Confidential
Information
June 4, 2009
|
Page 14 of 36
|
IN WITNESS WHEREOF, the
undersigned has executed this Investor Questionnaire this ____ day
of ___________, 2009, and declares that it is truthful and
correct.
|
Name of
Investor or Entity:
|
|
|
Signature of Investor or Representative:
|
|
|
If an Entity, Name and Title of Signatory:
|
|
|
Address:
|
|
|
|
|
|
Confidential
Information
June 4, 2009
|
Page 15 of 36
|
EXHIBIT B
MACATAWA BANK CORPORATION
CERTIFICATE OF DESIGNATION
______________________
CERTIFICATE OF ADOPTION OF RESOLUTION
DESIGNATING AND PRESCRIBING RIGHTS,
PREFERENCES AND LIMITATIONS
OF SERIES B NONCUMULATIVE CONVERTIBLE
PERPETUAL PREFERRED STOCK
OF
MACATAWA BANK CORPORATION
The
undersigned Company executes the following certificate pursuant to
the provisions of Section 302, Act 284, Public Acts of 1972, as
amended:
A.
The present name of the Company is Macatawa Bank Corporation (the
“Company”).
B.
The identification number assigned by the Bureau is: 502
582.
C.
The following is a true and correct copy of a resolution
designating and prescribing the relative rights, preferences and
limitations of the Company’s Series B Noncumulative
Convertible Perpetual Preferred Stock, which was duly adopted by
the Company’s Board of Directors (“Board of
Directors”) on June 18, 2009.
|
|
RESOLVED,
that pursuant to the authority vested in the Board of Directors of
this Company in accordance with the provisions of its Articles of
Incorporation, as amended, a series of preferred stock of the
Company be and hereby is created and the designation, amount,
qualifications, limitations and other rights and restrictions of
the shares of such series are as follows:
|
|
DESIGNATION OF SERIES B NONCUMULATIVE
CONVERTIBLE PERPETUAL PREFERRED STOCK
|
(a)
The designation of the series of preferred stock shall be Series B
Noncumulative Convertible Perpetual Preferred Stock (the
“Series B Preferred Stock”). Each share of Series B
Preferred Stock shall be identical in all respects to every other
share of Series B Preferred Stock.
|
|
(b)
The Series B Preferred Stock shall rank, with respect to dividend
rights and rights upon the liquidation, dissolution or winding up
of the Company:
|
|
(i)
senior to the Common Stock and any other class or series of the
Company’s capital stock that the Company may issue in the
future the terms of which do not expressly provide that it ranks on
a parity with, or senior to, to the Series B Preferred Stock
(“Junior Stock”);
|
|
Confidential
Information
June 4, 2009
|
Page 16 of 36
|
|
(ii)
equally with any class or series of the Company’s capital
stock that the Company may issue in the future the terms of which
expressly provide that such class or series shall rank on a parity
with the Series B Preferred Stock (“Parity
Stock”);
|
|
(iii)
junior to any class or series of the Company’s capital stock
that the Company may issue in the future the terms of which
expressly provide that such class or series shall rank senior to
the Series B Preferred Stock;
|
|
(iv)
junior to the Company’s Series A Noncumulative Convertible
Perpetual Preferred Stock; and
|
|
(v)
junior to all of the Company’s existing and future
indebtedness and other liabilities, including, without limitation,
all existing and future issuances of trust preferred
securities.
|
In
addition, the Series B Preferred Stock, with respect to dividends
rights and rights upon the liquidation, dissolution or winding up
of the Company will be subordinated to existing and future
indebtedness of the Company’s subsidiaries.
2.
Number of Shares . The number of authorized shares of Series
B Preferred Stock shall be 15,000. The Company shall have the
authority to issue fractional shares of Series B Preferred
Stock.
3.
Definitions . As used herein with respect to the Series B
Preferred Stock:
|
|
“Board
of Directors” has the meaning set forth in the recitals
above.
|
|
|
“Business
Day” means any weekday that is not a legal holiday in New
York, New York or Chicago, Illinois and is not a day on which
banking institutions in New York, New York or Chicago, Illinois are
authorized or required by law or regulation to be
closed.
|
|
|
“Closing
Price” of the Common Stock on any date of determination means
the closing sale price or, if no closing sale price is reported,
the last reported sale price at 4:00 p.m., New York City time, of
the shares of the Common Stock on the Nasdaq Global Select Market
on such date. If the Common Stock is not traded on the Nasdaq
Global Select Market on any date of determination, the Closing
Price of the Common Stock on such date of determination means the
closing sale price as reported in the composite transactions for
the principal U.S. national or regional securities exchange on
which the Common Stock is so listed, or, if no closing sale price
is reported, the last reported sale price on the principal U.S.
national or regional securities exchange on which the Common Stock
is so listed at 4:00 p.m., New York City time, or if the Common
Stock is not so listed on a U.S. national or regional securities
exchange, but is quoted on the OTC Bulletin Board (or any successor
thereof), the last quoted bid price thereon at 4:00 p.m., New York
City time, or if the Common Stock is not listed on a national or
regional securities exchange or quoted on the OTC Bulletin Board
(or any successor thereof), the last quoted bid price for the
Common Stock in the over-the-counter market as reported by Pink
Sheets LLC or similar organization at 4:00 p.m., New York City
time, or, if that bid price is not available, the market price
of
|
|
Confidential
Information
June 4, 2009
|
Page 17 of 36
|
|
|
the Common
Stock on that date as determined by a nationally recognized
investment banking firm (unaffiliated with the Company) retained by
the Company for this purpose.
|
|
|
“Common
Stock” means the common stock of the Company or any other
shares of the capital stock of the Company into which such shares
of common stock shall be reclassified or changed.
|
|
|
“Company”has
the meaning set forth in the recitals above.
|
|
|
“Conversion
Agent” means the Transfer Agent acting in its capacity as
conversion agent for the Series B Preferred Stock, and its
successors and assigns.
|
