Michigan
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0-7818
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38-2032782
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(State or Other Jurisdiction of Incorporation) | (Commission File No.) | (IRS Employer Identification No.) |
230 West Main Street, Ionia, Michigan
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48846
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(Address of Principal Executive Offices) | (Zip Code) |
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12).
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b)).
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)).
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Item 1.01
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Entry into a Material Definitive Agreement.
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Item 3.03
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Material Modification to Rights of Security Holders.
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Item 5.03
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Amendment to the Articles of Incorporation.
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Item 8.01
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Other Events.
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Item 9.01
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Financial Statements and Exhibits.
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(d)
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Exhibits
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3.1
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Certificate of Designation amending the Company's Articles of Incorporation, filed with the State of Michigan on November 10, 2011 (incorporated into this Exhibit 3.1 by reference to Exhibit 4.2 of the Form 8-A).
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4.1
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Tax Benefits Preservation Plan, including exhibits, dated as of November 15, 2011, by and between the Company and American Stock Transfer & Trust Company, LLC (incorporated into this Exhibit 4.1 by reference to Exhibit 4.1 of the Form 8-A).
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Letter to Shareholders (Tax Benefits Preservation Plan).
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INDEPENDENT BANK CORPORATION
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Dated: November 15, 2011
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By:
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/s/ Robert N. Shuster | |
Robert N. Shuster
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Its: Executive VP and Chief Financial Officer | |||
Sincerely, |
Michael M. Magee Jr. |
Chief Executive Officer |
Enclosure |
Purpose of Plan
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The purpose of the Tax Benefits Preservation Plan (the "Plan") described in this summary of terms is to preserve the value of certain deferred tax assets ("Tax Benefits") of Independent Bank Corporation (the "Company") for U.S. federal income tax purposes.
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Issuance of Rights
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The Board of Directors of the Company (the "Board") has authorized and declared a dividend of one preferred share purchase right (a "Right") in respect of each share of common stock of the Company (the "Common Stock") outstanding at the close of business on November 15, 2011 (the "Record Date") or to become outstanding between the Record Date and the earlier of the Distribution Date (as such term is defined below) and the date the Plan terminates.
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Distribution Date; Separation of
Rights
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Rights will separate from the Common Stock and become exercisable following the close of business on the 10th business day (the "Distribution Date") following the earlier of a Shares Acquisition Date and a Tender Offer Date, defined as follows:
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"Shares Acquisition Date" means the date of the first public announcement by the Company in a press release expressly referring to the Plan indicating that a person has become an Acquiring Person (as such term is defined below).
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"Tender Offer Date" means the date of the commencement of a tender or exchange offer by any person if, upon consummation thereof, such person would or could be an Acquiring Person.
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Definition of
Acquiring
Person
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For purposes of the Plan, "Acquiring Person" means any person who or which, together with its affiliates, beneficially owns 4.99% or more of the Common Stock, other than the following:
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the U.S. government;
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the Company or any subsidiary or employee benefit plan or compensation arrangement of the Company;
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any person who or which, together with its affiliates, was the beneficial owner of 4.99% or more of the Common Stock on the Record Date1;
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any person who or which would beneficially own 4.99% or more of shares of Common Stock as a result of a reduction in outstanding Common Stock by the Company;
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any person that has become a 4.99% holder if the Board in good faith determines that the attainment of such status has not jeopardized or endangered the Company's utilization of the Tax Benefits1; and
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any person who or which would be the beneficial owner of 4.99% or more of the Common Stock as a result of certain acquisitions or other transactions approved in advance by the Board, as set forth in more detail in the Plan.1
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Exercise of
Rights After
Distribution
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On and after the Distribution Date, each Right will initially entitle the holder to purchase 1/1000 of a share of Preferred Stock for $20.00.
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The preferred shares would participate in any dividends on the Common Stock. Each 1/1000 of a share of Preferred Stock would be entitled to the same dividend as one share of Common Stock.
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The preferred shares would vote with the Common Stock. Each 1/1000 of a share of Preferred Stock would be entitled to one vote.
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The liquidation preference and merger consideration for each 1/1000 of a share of Preferred Stock would equal the same liquidation preference and merger consideration per one share of Common Stock.
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Purchase of
Securities
at a Discount
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Following a Shares Acquisition Date, each Right will automatically represent a right to buy securities of the Company at a discount of 50% to the current market price of the Common Stock. However, the Rights owned by the Acquiring Person or its transferees would automatically be void. As a result, the Acquiring Person would be so severely diluted that it would not have an incentive to purchase and trigger such Rights.
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Exchange of
Rights for
Securities
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At any time after the Shares Acquisition Date, the Board may, at its option, exchange all or part of the then outstanding and exercisable Rights for Preferred Stock or Common Stock at a specified exchange ratio. This provision provides a cashless way for the Company to realize the benefits of the Plan.
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Redemption
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The Board may, at its option, redeem all of the then outstanding Rights at a redemption price of $0.001 per Right at any time prior to a Shares Acquisition Date.
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Amendments
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The Company may from time to time before the Shares Acquisition Date supplement or amend the Plan without the approval of any holders of Rights (or, prior to the Distribution Date, the holders of Common Stock).
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Expiration
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The Rights will expire on the earlier of (1) the close of business on November 15, 2016, (2) the time at which all Rights are redeemed, (3) the time at which all Rights are exchanged, (4) such date as the Board determines that the Plan is no longer necessary for the preservation of the Tax Benefits, and (5) such date prior to a Shares Acquisition Date as the Board determines that the Plan is no longer in the best interests of the Company and its shareholders.
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Income Tax
Consequences
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Adoption of the Plan is not a taxable event for the Company or its shareholders under the federal income tax laws. Once the Rights become exercisable and are separated from the Common Stock, (1) each Right will be a capital asset in the hands of most shareholders, the tax basis of which will either be zero or an allocable part of the tax basis of the Common Stock, and (2) the holding period of each Right will include the holding period of the Common Stock pursuant to which the Right was issued. The redemption of the Rights for cash and, most likely, the acquisition of the Rights by another company for stock would each be taxable events.
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