ACCRUED AND UNPAID DIVIDENDS THAT
WOULD OTHERWISE BE PAYABLE TO THE INVESTOR (ROUNDED TO THE NEAREST WHOLE CENT)
WOULD EQUAL $2,272,570.31, AND THE NUMBER OF SHARES OF CAPITAL SECURITIES
ISSUABLE TO TREASURY IN EXCHANGE FOR SUCH AMOUNT WOULD EQUAL 2,273 SHARES.
-4-
THE ISSUANCE OF ANY SUCH SHARES OF CAPITAL SECURITIES IN SUCH AMOUNT SHALL
CONSTITUTE FULL PAYMENT OF THE CASH DIVIDENDS THAT WOULD OTHERWISE HAVE BEEN
PAYABLE UNDER THE SERIES A SHARES OUTSTANDING IMMEDIATELY PRIOR TO THE CLOSING
DATE.
SECTION 2.2
EXCHANGE DOCUMENTATION.
SETTLEMENT OF THE EXCHANGE WILL TAKE
PLACE ON THE CLOSING DATE, AT WHICH TIME THE INVESTOR WILL CAUSE DELIVERY OF THE
SERIES A SHARES TO THE COMPANY OR ITS DESIGNATED AGENT AND THE COMPANY WILL
CAUSE DELIVERY OF THE CAPITAL SECURITIES TO THE INVESTOR OR ITS DESIGNATED
AGENT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as Previously Disclosed, the Company represents and warrants to the
Investor as of the date hereof and as of the Closing Date that:
SECTION 3.1
EXISTENCE AND POWER.
(A)
ORGANIZATION, AUTHORITY AND SIGNIFICANT SUBSIDIARIES.
THE COMPANY IS
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
STATE OF MICHIGAN AND HAS ALL NECESSARY POWER AND AUTHORITY TO OWN, OPERATE AND
LEASE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS IN ALL MATERIAL RESPECTS AS IT
IS BEING CURRENTLY CONDUCTED, AND EXCEPT AS HAS NOT, INDIVIDUALLY OR IN THE
AGGREGATE, HAD AND WOULD NOT REASONABLY BE EXPECTED TO HAVE A COMPANY MATERIAL
ADVERSE EFFECT, HAS BEEN DULY QUALIFIED AS A FOREIGN CORPORATION FOR THE
TRANSACTION OF BUSINESS AND IS IN GOOD STANDING UNDER THE LAWS OF EACH OTHER
JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTIES OR CONDUCTS ANY BUSINESS SO
AS TO REQUIRE SUCH QUALIFICATION; EACH SUBSIDIARY OF THE COMPANY THAT IS A
"SIGNIFICANT SUBSIDIARY" WITHIN THE MEANING OF RULE 1-02(W) OF REGULATION S-X
UNDER THE SECURITIES ACT, INCLUDING, WITHOUT LIMITATION, INDEPENDENT BANK, HAS
BEEN DULY ORGANIZED AND IS VALIDLY EXISTING IN GOOD STANDING UNDER THE LAWS OF
ITS JURISDICTION OF ORGANIZATION.
THE CHARTER AND BYLAWS OF THE COMPANY, COPIES
OF WHICH HAVE BEEN PROVIDED TO THE INVESTOR PRIOR TO THE DATE HEREOF, ARE TRUE,
COMPLETE AND CORRECT COPIES OF SUCH DOCUMENTS AS IN FULL FORCE AND EFFECT AS OF
THE DATE HEREOF.
(B)
CAPITALIZATION.
THE AUTHORIZED CAPITAL STOCK OF THE COMPANY, AND THE
OUTSTANDING CAPITAL STOCK OF THE COMPANY (INCLUDING SECURITIES CONVERTIBLE INTO,
OR EXERCISABLE OR EXCHANGEABLE FOR, CAPITAL STOCK OF THE COMPANY) AS OF THE MOST
RECENT FISCAL MONTH-END PRECEDING THE DATE HEREOF (THE "CAPITALIZATION DATE") IS
SET FORTH ON SCHEDULE A.
THE OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY
HAVE BEEN DULY AUTHORIZED AND ARE VALIDLY ISSUED AND OUTSTANDING, FULLY PAID AND
NONASSESSABLE, AND SUBJECT TO NO PREEMPTIVE RIGHTS (AND WERE NOT ISSUED IN
VIOLATION OF ANY PREEMPTIVE RIGHTS).
EXCEPT AS PROVIDED IN THE OLD WARRANT, AS
OF THE DATE HEREOF, THE COMPANY DOES NOT HAVE OUTSTANDING ANY SECURITIES OR
OTHER OBLIGATIONS PROVIDING THE HOLDER THE RIGHT TO ACQUIRE COMMON