REGISTRATION RIGHTS AGREEMENT
Exhibit
99.2
Registration Rights Agreement (the “Agreement”), dated as of July 7, 2010, by and
between Independent Bank Corporation, a corporation organized under the laws of Michigan, (the
“Company”), and Dutchess Opportunity Fund, II, LP, a Delaware Limited Partnership, with its
principal office at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxx, XX 00000 (the “Investor”).
Whereas, in connection with the Investment Agreement by and between the Company and the
Investor of this date (the “Investment Agreement”), the Company has agreed (to the extent
the Company exercises its right to do so) to issue and sell to the Investor shares of the Company’s
Common Stock, no par value per share (the “Common Stock”), to be purchased pursuant to the
terms and subject to the conditions set forth in the Investment Agreement; and
Whereas, to induce the Investor to execute and deliver the Investment Agreement, the Company
has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute (collectively, the “1933
Act”), and applicable state securities laws, with respect to the shares of Common Stock
issuable pursuant to the Investment Agreement.
Now therefore, in consideration of the foregoing promises and the mutual covenants contained
hereinafter and other good and valuable consideration, the receipt and sufficiency of which are
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:
“Execution Date” means the date of this Agreement set forth above.
“Investor” means Dutchess Opportunity Fund, II, LP, a Delaware Limited Partnership.
“Person” means a corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
“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 of
the Company is listed from time to time.
“Register,” “Registered,” and “Registration” refer to the Registration
effected by preparing and filing one (1) or more Registration Statements in compliance with the
1933 Act and the declaration or ordering of effectiveness of such Registration Statement(s) by the
United States Securities and Exchange Commission (the “SEC”).
“Registrable Securities” means (i) the shares of Common Stock issued or issuable
pursuant to the Investment Agreement, and (ii) any shares of capital stock issued or issuable with
respect to such shares of Common Stock, if any, as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, which have not been (x) included in the
Registration Statement that has been declared effective by the SEC, or (y) sold under circumstances
meeting all of the applicable conditions of Rule 144 (or any similar provision then in force) under
the 1933 Act.
“Registration Statement” means the registration statement of the Company filed under
the 1933 Act covering the Registrable Securities.
All capitalized terms used in this Agreement and not otherwise defined herein shall have the
same meaning ascribed to them as in the Investment Agreement.
Section 2. REGISTRATION.
(a) On or before August 20, 2010, the Company shall file with the SEC the Registration
Statement or Registration Statements (as is necessary) on Form S-1 (or, if such form is unavailable
for such a registration, on such other form as is available for such registration), covering the
resale of all of the Registrable Securities, which Registration Statement(s) shall state that, in
accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement also covers
such indeterminate number of additional shares of Common Stock as may become issuable upon stock
splits, stock dividends or similar transactions. The Company shall initially register for resale
15,024,685 shares of Common Stock, except (i) to the extent that the SEC indicates that the share
amount be reduced as a condition of effectiveness, and (ii) if the number of shares of Common Stock
outstanding changes by reason of a reverse stock split, stock dividend, stock split, or similar
recapitalization, such number of shares shall be adjusted appropriately.
(b) The Company shall use all commercially reasonable efforts to have the Registration
Statement(s) declared effective by the SEC within ninety (90) calendar days after the date that the
Registration Statement is filed.
(c) The Company agrees not to include any other securities in the Registration Statement
covering the Registrable Securities without Investor’s prior written consent which Investor may
withhold in its sole discretion. Furthermore, after the Registration Statement is filed, the
Company agrees that it will not file any other Registration Statement for other securities (other
than a Registration Statement filed on Form S-8), until thirty calendar days after the Registration
Statement for the Registrable Securities is declared effective by the SEC; provided that this
Agreement shall in no way prevent or limit the Company’s ability to amend or supplement
Registration Statements filed by the Company prior to the filing of the Registration Statement
related to the Registrable Securities.
Section 3. RELATED OBLIGATIONS.
At such time as the Company is obligated to prepare and file the Registration Statement with
the SEC pursuant to Section 2(a), the Company shall have the following obligations with respect to
the Registration Statement:
(a) The Company shall use all commercially reasonable efforts to cause such Registration
Statement relating to the Registrable Securities to become effective within ninety (90) days after
the date that the Registration Statement is filed and shall keep such Registration Statement
effective until the earlier to occur of the date on which (A) the Investor shall have sold all the
Registrable Securities; or (B) the Company has no right to sell any additional shares of Common
Stock under the Investment Agreement (the “Registration Period”). The Registration
Statement (including any amendments or supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein, or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading. The Company shall use all commercially reasonable efforts to
respond to all SEC comments within ten (10) business days from receipt of such comments by the
Company. The Company shall use all commercially reasonable efforts to cause the Registration
Statement relating to the Registrable Securities to become effective no later than five (5)
business days after notice from the SEC that the Registration Statement may be declared effective.
The Investor agrees to provide all information which it is required by law to provide to the
Company, including the intended method of disposition of the Registrable Securities, and the
Company’s obligations set forth above shall be conditioned on the receipt of such information.
(b) The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus used in connection
with
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such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep such Registration Statement effective during the
Registration Period, and, during such period, comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities shall have been
disposed of in accordance with the intended methods of disposition by the Investor thereof as set
forth in such Registration Statement. In the event the number of shares of Common Stock covered by
the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover
all of the Registrable Securities, the Company shall amend such Registration Statement, or file a
new Registration Statement (on the short form available therefor, if applicable), or both, so as to
cover all of the Registrable Securities, in each case, as soon as practicable, but in any event
within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase
Price of the Common Stock and other relevant factors on which the Company reasonably elects to
rely), assuming the Company has sufficient authorized shares at that time, and if it does not,
within thirty (30) calendar days after such shares are authorized. The Company’s obligations
pursuant to the preceding sentence shall be subject, in all respects, to limitations and other
provisions of the 1933 Act and the SEC rules promulgated thereunder. The Company shall use
commercially reasonable efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof.
(c) The Company shall make available to the Investor and its legal counsel without charge (i)
if requested by the Investor, promptly after the same is prepared and filed with the SEC at least
one (1) copy of such Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by reference and all exhibits, the
prospectus included in such Registration Statement (including each preliminary prospectus) and,
with regards to such Registration Statement(s), any correspondence by or on behalf of the Company
to the SEC or the staff of the SEC and any correspondence from the SEC or the staff of the SEC to
the Company or its representatives unless the Company believes that such correspondence would be
material, non-public information; (ii) upon the effectiveness of any Registration Statement, the
Company shall make available copies of the prospectus, via XXXXX, included in such Registration
Statement and all amendments and supplements thereto; and (iii) such other documents, including
copies of any preliminary or final prospectus, as the Investor may reasonably request from time to
time in order to facilitate the disposition of the Registrable Securities.
(d) The Company shall use commercially reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other securities or “blue
sky” laws of such states in the United States as the Investor reasonably requests; (ii) prepare and
file in those jurisdictions, such amendments (including post-effective amendments) and supplements
to such registrations and qualifications as may be necessary to maintain the effectiveness thereof
during the Registration Period; (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), or (y) subject itself to
general taxation in any such jurisdiction. The Company shall promptly notify the Investor who
holds Registrable Securities of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable Securities for sale under
the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual
notice of the initiation or threatening of any proceeding for such purpose.
(e) As promptly as practicable after becoming aware of such event, the Company shall notify
Investor in writing of the happening of any event as a result of which the prospectus included in
the Registration Statement, as then in effect, includes an untrue statement of a material fact or
omission 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
(“Registration Default”) and use all diligent efforts to promptly prepare a supplement or
amendment to such Registration Statement and take any other necessary steps to cure the
Registration Default (which, if such Registration Statement is on
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Form S-3, may consist of a document to be filed by the Company with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act (as defined below) and to be incorporated by
reference in the prospectus) to correct such untrue statement or omission, and make available
copies of such supplement or amendment to the Investor. The Company shall also promptly notify the
Investor (i) when a prospectus or any prospectus supplement or post-effective amendment has been
filed, and when the Registration Statement or any post-effective amendment has become effective;
(ii) of any request by the SEC for amendments or supplements to the Registration Statement or
related prospectus or related information, (iii) of the Company’s reasonable determination that a
post-effective amendment to the Registration Statement would be appropriate, (iv) in the event the
Registration Statement is no longer effective, or (v) if the Registration Statement is stale as a
result of the Company’s failure to timely file its financials or otherwise. If a Registration
Default occurs during the period commencing on the Put Notice Date and ending on the related
Closing Date, the Company acknowledges that its failure to cure such a Registration Default within
ten (10) business days will cause the Investor to suffer damages in an amount that will be
difficult to ascertain.
(f) The Company shall use all commercially reasonable efforts to prevent the issuance of any
stop order or other suspension of effectiveness of the Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such
an order or suspension is issued, to obtain the withdrawal of such order or suspension at the
earliest possible moment and to notify the Investor holding Registrable Securities being sold of
the issuance of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding concerning the effectiveness of the Registration Statement.
(g) The Company shall permit the Investor and one (1) legal counsel, designated by the
Investor, to review and comment upon the Registration Statement and all amendments and supplements
thereto at least one (1) business day prior to their filing with the SEC. The Company is not
obligated to accept the Investor’s comments and the Company will notify the Investor at least one
(1) business day prior to filing the Registration Statement that the Investor’s comment or comments
will not be accepted. However, any postponement of a filing of a Registration Statement or any
postponement of a request for acceleration or any postponement of the effective date or
effectiveness of a Registration Statement by written request of the Investor (collectively, the
“Investor’s Delay”) shall not act to trigger any penalty of any kind, or any cash amount
due or any in-kind amount due the Investor from the Company under any and all agreements of any
nature or kind between the Company and the Investor. The event(s) of an Investor’s Delay shall act
to suspend all obligations of any kind or nature of the Company under any and all agreements of any
nature or kind between the Company and the Investor.
(h) Intentionally Omitted.
(i) The Company shall hold in confidence and not make any disclosure of information
concerning the Investor unless (i) disclosure of such information is necessary to comply with
federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-appealable order from a court or
governmental body of competent jurisdiction, (iv) such information has been made generally
available to the public other than by disclosure in violation of this Agreement or any other
agreement, or (v) the Investor has consented to such disclosure. The Company agrees that it shall,
upon learning that disclosure of such information concerning the Investor is sought in or by a
court or governmental body of competent jurisdiction or through other means, give prompt written
notice to the Investor and allow the Investor, at the Investor’s expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order covering such information.
(j) The Company shall use all commercially reasonable efforts to maintain designation and
quotation of all the Registrable Securities covered by any Registration Statement on a Principal
Market. The Company shall pay all fees and expenses in connection with satisfying its obligation
under this Section 3(j).
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(k) The Company shall cooperate with the Investor to facilitate the prompt preparation and
delivery of certificates representing the Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates to be in such denominations or amounts, as the
case may be, as the Investor may reasonably request (and after any sales of such Registrable
Securities by the Investor, such certificates not bearing any restrictive legend).
(l) The Company shall provide a transfer agent for all the Registrable Securities not later
than the effective date of the first Registration Statement filed pursuant hereto.
(m) If requested by the Investor, the Company shall (i) as soon as reasonably practical
incorporate in a prospectus supplement or post-effective amendment such information as the Investor
reasonably determines should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information with respect to the offering of
the Registrable Securities to be sold in such offering; (ii) make all required filings of such
prospectus supplement or post-effective amendment as soon as reasonably possible after being
notified of the matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any Registration Statement if reasonably
requested by the Investor.
(n) The Company shall use all commercially reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to facilitate the disposition
of such Registrable Securities.
(o) The Company shall otherwise use all commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC in connection with any registration hereunder.
(p) Within one (1) business day after the Registration Statement which includes Registrable
Securities is declared effective by the SEC, the Company shall deliver to the transfer agent for
such Registrable Securities, with copies to the Investor, a written notification that such
Registration Statement has been declared effective by the SEC.
Section 4. OBLIGATIONS OF THE INVESTOR.
(a) At least five (5) calendar days prior to the first anticipated filing date of the
Registration Statement the Company shall notify the Investor in writing of the information the
Company requires from the Investor for the Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration pursuant to this Agreement
with respect to the Registrable Securities and the Investor agrees to furnish to the Company that
information regarding itself, the Registrable Securities and the intended method of disposition of
the Registrable Securities as shall reasonably be required to effect the registration of such
Registrable Securities and the Investor shall execute such documents in connection with such
registration as the Company may reasonably request. The Investor covenants and agrees that, in
connection with any sale of Registrable Securities by it pursuant to the Registration Statement, it
shall comply with the “Plan of Distribution” section of the then current prospectus relating to
such Registration Statement.
(b) The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with
the Company as reasonably requested by the Company in connection with the preparation and filing of
any Registration Statement hereunder.
(c) The Investor agrees that, upon receipt of written notice from the Company of the
happening of any event of the kind described in Section 3(f) or the first sentence of 3(e), the
Investor will immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until the Investor’s receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3(f) or the first sentence
of Section 3(e).
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Section 5. EXPENSES OF REGISTRATION.
All expenses, other than underwriting discounts and commissions and other than as set forth in
the Investment Agreement, incurred in connection with registrations including comments, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all registration,
listing and qualifications fees, printing and accounting fees, and fees and disbursements of
counsel for the Company shall be paid by the Company. However, the Investor will pay the costs of
its own counsel, including as necessary to review the Registration Statement, any amendments
thereto, and any correspondence with the SEC.
Section 6. INDEMNIFICATION.
In the event any Registrable Securities are included in the Registration Statement under this
Agreement:
(a) To the fullest extent permitted by law, the Company, under this Agreement, will, and
hereby does, indemnify, hold harmless and defend the Investor who holds Registrable Securities, the
directors, officers, partners, employees, counsel, agents, representatives of, and each Person, if
any, who controls, any Investor within the meaning of the 1933 Act or the Securities Exchange Act
of 1934, as amended (the “1934 Act”) (each, an “Indemnified Person”), against any
actual losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs,
attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively,
“Claims”), incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an indemnified party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in the Registration
Statement or any post-effective amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in
which the Investor has requested in writing that the Company register or qualify the Shares
(“Blue Sky Filing”), or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances
under which the statements therein were made, not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in the final prospectus (as amended or supplemented,
if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or
alleged omission to state therein any material fact necessary to make the statements made therein,
in light of the circumstances under which the statements therein were made, not misleading, or
(iii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any other
law, including, without limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities pursuant to the Registration Statement
(the matters in the foregoing clauses (i) through (iii) being, collectively, “Violations”).
Subject to the restrictions set forth in Section 6(c) the Company shall reimburse the Investor and
each such controlling person, promptly as such expenses are incurred and are due and payable, for
any actual, reasonable legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a
Claim arising out of or based upon a Violation which is due to the inclusion in the Registration
Statement of the information furnished to the Company by any Indemnified Person expressly for use
in connection with the preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the extent such Claim is based on (a) a failure
of the Investor to deliver or to cause to be delivered the prospectus made available by the Company
or (b) the Investor’s use of an incorrect prospectus despite being promptly advised in advance by
the Company in writing not to use such incorrect prospectus; (iii) any claims based on the manner
of sale of the Registrable Securities by the Investor or of the Investor’s failure to register as a
dealer under applicable securities laws or any other failure or alleged failure of the Investor to
comply with applicable federal and state laws, rules, and regulations; (iv) any omission of the
Investor to notify the Company of any material fact that should be stated in the Registration
Statement or prospectus relating to the Investor
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or the manner of sale; and (v) any amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the resale of the Registrable
Securities by the Investor pursuant to the Registration Statement.
(b) In connection with any Registration Statement in which Investor is participating, the
Investor agrees to severally and jointly indemnify, hold harmless and defend, to the same extent
and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each
of its officers who signs the Registration Statement, each Person, if any, who controls the Company
within the meaning of the 1933 Act or the 1934 Act and the Company’s agents (collectively and
together with an Indemnified Person, an “Indemnified Party”), against any Claim or
Indemnified Damages to which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such Violation is due to (i)
the inclusion in the Registration Statement of the information furnished to the Company by any
Indemnified Person expressly for use in connection with such Registration Statement or any such
amendment thereof or supplement thereto, (ii) a failure of the Investor to deliver or to cause to
be delivered the prospectus made available by the Company or the Investor’s use of an incorrect
prospectus despite being timely advised by the Company in writing not to use such incorrect
prospectus; (iii) any claims based on the manner of sale of the Registrable Securities by the
Investor or the Investor’s failure to register as a dealer under applicable securities laws or any
other failure or alleged failure of the Investor to comply with applicable federal and state laws,
rules, and regulations; or (iv) any omission of the Investor to notify the Company of any material
fact that should be stated in the Registration Statement or prospectus relating to the Investor or
the manner of sale; and, subject to Section 6(c), the Investor will reimburse any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written consent of the Investor,
which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified Party and shall
survive the resale of the Registrable Securities by the Investor pursuant to the Registration
Statement.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6
of notice of the commencement of any action or proceeding (including any governmental action or
proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be; provided, however, that an Indemnified Person or Indemnified
Party shall have the right to retain its own counsel with the fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the Indemnified Person or
Indemnified Party, the representation by counsel of the Indemnified Person or Indemnified Party and
the indemnifying party would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The indemnifying party shall pay for only one (1) separate legal
counsel for the Indemnified Persons or the Indemnified Parties, as applicable, and such counsel
shall be selected by the Investor, if the Investor is entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as applicable. The Indemnified
Party or Indemnified Person shall cooperate fully with the indemnifying party in connection with
any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish
to the indemnifying party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any
settlement of any action, claim or proceeding affected without
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its written consent, provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without the consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release from all
liability in respect to such Claim. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person
with respect to all third parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under this Section 6, except
to the extent that the indemnifying party is prejudiced in its ability to defend such action.
(d) The indemnity agreements contained herein shall be in addition to (i) any cause of action
or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or
others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.
Section 7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that: (i) no contribution shall be made under circumstances where the maker
would not have been liable for indemnification under the fault standards set forth in Section 6;
(ii) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller
of Registrable Securities shall be limited in amount to the net amount of proceeds received by such
seller from the sale of such Registrable Securities.
Section 8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investor the benefits of Rule 144 promulgated under the
1933 Act or any other similar rule or regulation of the SEC that may at any time permit the
Investor to sell securities of the Company to the public without registration (“Rule 144”),
provided that the Investor holds any Registrable Securities that are eligible for resale under Rule
144 and such information is necessary in order for the Investor to sell such Securities pursuant to
Rule 144, the Company agrees to:
(a) make and keep public information available, as those terms are understood and defined in
Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such
requirements (it being understood that nothing herein shall limit the Company’s obligations under
Section 5(c) of the Investment Agreement) and the filing of such reports and other documents is
required for the applicable provisions of Rule 144; and
(c) furnish to the Investor, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be reasonably requested
to permit the Investor to sell such securities pursuant to Rule 144 without registration.
Section 9. NO ASSIGNMENT OF REGISTRATION RIGHTS.
The rights and obligations under this Agreement shall not be assignable.
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Section 10. AMENDMENT OF REGISTRATION RIGHTS.
The provisions of this Agreement may be amended only with the written consent of the Company
and Investor.
Section 11. MISCELLANEOUS.
(a) Any notices or other communications required or permitted to be given under the terms of
this Agreement that must be in writing 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 a 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 Xxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
00 Xxxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each party shall provide five (5) business days prior notice to the other party of any change
in address, phone number, facsimile number or e-mail address.
(b) Failure of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
(c) This Agreement and the Investment Agreement constitute the entire agreement among the
parties hereto with respect to the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to herein and therein.
(d) This Agreement and the Investment Agreement supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter hereof and thereof.
(e) The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof. Whenever required by the context of this Agreement, the
singular shall include the plural and masculine shall include the feminine. This Agreement shall
not be construed as if it had been prepared by one of the parties, but rather as if all the parties
had prepared the same.
(f) This Agreement may be executed in two or more identical counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same agreement. This
Agreement, once executed by a party, may be delivered to the other party hereto by facsimile
transmission or by e-mail delivery of a PDF format of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
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(g) 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.
(h) In case any provision of this Agreement is held by a court of competent jurisdiction to be
excessive in scope or otherwise invalid or unenforceable, such provision shall be adjusted rather
than voided, if possible, so that it is enforceable to the maximum extent possible, and the
validity and enforceability of the remaining provisions of this Agreement will not in any way be
affected or impaired thereby.
Section 12. DISPUTES SUBJECT TO ARBITRATION; GOVERNING LAW
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 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.
*.*.*
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SIGNATURE PAGE OF REGISTRATION RIGHTS 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 Registration Rights
Agreement, and the representations made by the undersigned in this Registration Rights 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 | ||||
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