-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, B+fGjg+GWGpaTktBxtt/VjbO4z3sQgdw3rdN2GiNNRo6or5UdWir+iUCImJe589p +ve4S5yfudqGkEKNZeeOBA== 0000950124-00-007633.txt : 20001225 0000950124-00-007633.hdr.sgml : 20001225 ACCESSION NUMBER: 0000950124-00-007633 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001222 EFFECTIVENESS DATE: 20001222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCANTILE BANK CORP CENTRAL INDEX KEY: 0001042729 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 383360865 STATE OF INCORPORATION: MI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-52620 FILM NUMBER: 794929 BUSINESS ADDRESS: STREET 1: 42 DEER RUN DRIVE CITY: ADA STATE: MI ZIP: 49301 BUSINESS PHONE: 6166760201 MAIL ADDRESS: STREET 1: 42 DEER RUN DRIVE CITY: ADA STATE: MI ZIP: 49301 S-8 1 k59145s-8.txt REGISTRATION STATEMENT ON FORM S-8 1 As filed with the Securities and Exchange Commission on December 22, 2000 Registration No. 333-- ------- U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ----------------------- MERCANTILE BANK CORPORATION (Exact number of issuer as specified in its charter) Michigan 38-3360865 (State or other jurisdiction of (I.R.S. Employer Identification No.) of incorporation or organization) 216 North Division Avenue, Grand Rapids, Michigan 49503 (Address of Principal Executive Offices) (Zip Code) MERCANTILE BANK CORPORATION 2000 EMPLOYEE STOCK OPTION PLAN (Full title of the plan) GERALD R. JOHNSON, JR., CHAIRMAN Mercantile Bank Corporation 216 North Division Avenue Grand Rapids, Michigan 49503 (Name and Address of Agent for service) (616) 242-9000 (Telephone number, including area code, of agent for service) COPIES OF COMMUNICATIONS TO: JEROME M. SCHWARTZ Dickinson Wright PLLC 500 Woodward Avenue, Suite 4000 Detroit, Michigan 48226 CALCULATION OF REGISTRATION FEE
- -------------------------------- ---------------------- ------------------------- ------------------------ ----------------- Proposed Maximum Proposed Title of Securities Amount to be Offering Price Per Maximum Aggregate Amount of to be Registered* Registered* Share** Offering Price** Registration Fee - -------------------------------- ---------------------- ------------------------- ------------------------ ----------------- Common Stock 120,000 Shares $12.75 $1,530,000 $383 - -------------------------------- ---------------------- ------------------------- ------------------------ -----------------
* Includes an indeterminate number of additional shares that may be issued to adjust for any subdivision of shares or other capital adjustment, stock split, stock dividend, or other increase in shares effected without receipt of consideration by the issuer. ** Estimated pursuant to Rule 457(c) solely for purposes of calculating the registration fee, based upon the average of the high bid and low ask prices on December 19, 2000, as reported on the Nasdaq National Market. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Mercantile Bank Corporation ("Mercantile") incorporates by reference in this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"): 1. Mercantile's Annual Report on Form 10-KSB for the year ended December 31, 1999. 2. Mercantile's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000. 3. The description of Mercantile's common stock in Item 1 of Mercantile's Form 8-A registration statement dated July 9, 1999, filed with the Commission under the Exchange Act on July 15, 1999, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed with the Commission by Mercantile pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the dates of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL As of December 1, 2000, members of Dickinson Wright PLLC who perform services for Mercantile owned approximately 8,300 shares of common stock of Mercantile. 1 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Indemnification Mercantile's Articles of Incorporation provide that Mercantile shall indemnify its present and past directors, officers, and such other persons as the Board of Directors may authorize to the full extent permitted by law. Mercantile's Bylaws contain indemnification provisions concerning third party actions as well as actions in the right of Mercantile. The Bylaws provide that Mercantile shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Mercantile) by reason of the fact that he or she is or was a director or officer of Mercantile or while serving as such a director or officer, is or was serving at the request of Mercantile as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses (including attorney's fees), judgments, penalties, fees and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Mercantile or its shareholders and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Federal Deposit Insurance Corporation regulations impose limitations on indemnification payments which could restrict, in certain circumstances, payments by Mercantile or the Bank to their respective directors or officers otherwise permitted under the Michigan Business Corporation Act ("MBCA") or the Michigan Banking Code, respectively. With respect to derivative actions, the Bylaws provide that Mercantile shall indemnify any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Mercantile to procure a judgment in its favor by reason of the fact that he or she is or was a director or officer of Mercantile, or while serving as such a director or officer, is or was serving at the request of Mercantile as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses (including attorney's fees) and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Mercantile or its shareholders. No indemnification is provided in the Bylaws in respect of any claim, issue or matter in which such person has been found liable to Mercantile except to the extent that a court of competent jurisdiction determines upon application that, despite 2 4 the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of Mercantile pursuant to the provisions discussed above or otherwise, Mercantile has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. Mercantile has purchased directors' and officers' liability insurance for directors and officers of Mercantile. Limitation of Director Liability The MBCA permits corporations to limit the personal liability of their directors in certain circumstances. Mercantile's Articles of Incorporation provide that the director of Mercantile shall not be personally liable to Mercantile or its shareholders for monetary damages for breach of the director's fiduciary duty. However, they do not eliminate or limit the liability of a director for any breach of a duty, act or omission for which the elimination or limitation of liability is not permitted by the MBCA, currently including, without limitation, the following: (1) breach of the director's duty of loyalty to Mercantile or its shareholders; (2) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of the law; (3) illegal loans, distributions of dividends or assets, or stock purchases as described in Section 551(1) of the MBCA; and (4) transactions from which the director derived an improper personal benefit. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable 3 5 ITEM 8. EXHIBITS The following exhibits are filed with this Registration Statement: Exhibit Number Exhibit ------ ------- 4 Article III of the Articles of Incorporation of Mercantile is incorporated by reference to Exhibit 3.1 of Mercantile's Registration Statement on Form SB-2 (Commission File No. 333-33081) that became effective on October 23, 1997 5 Opinion of Counsel, Dickinson Wright PLLC 23(a) Consent of Crowe, Chizek and Company LLP 23(b) Consent of Dickinson Wright PLLC is included in Exhibit 5 ITEM 9. UNDERTAKINGS The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any Prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the Prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, provided that any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b), if in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. 4 6 (2) That, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant, in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether or not such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 5 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City Grand Rapids and State of Michigan on December 21, 2000 MERCANTILE BANK CORPORATION By /s/ Gerald R. Johnson, Jr. ---------------------------------------------- Gerald R. Johnson, Jr., Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on December 21, 2000. /s/ Betty S. Burton /s/ Lawrence W. Larsen - --------------------------------------- -------------------------------------- Betty S. Burton, Director Lawrence W. Larsen, Director /s/ Edward J. Clark /s/ Calvin D. Murdock - --------------------------------------- -------------------------------------- Edward J. Clark, Director Calvin D. Murdock, Director /s/ Peter A. Cordes /s/ Michael H. Price - --------------------------------------- -------------------------------------- Peter A. Cordes, Director Michael H. Price, President and Chief Operating Officer /s/ C. John Gill /s/ Dale J. Visser - --------------------------------------- -------------------------------------- C. John Gill, Director Dale J. Visser, Director /s/ David M. Hecht /s/ Donald Williams, Sr. - --------------------------------------- -------------------------------------- David M. Hecht, Director Donald Williams, Sr., Director /s/ Gerald R. Johnson, Jr. /s/ Robert M. Wynalda - --------------------------------------- -------------------------------------- Gerald R. Johnson, Jr., Chairman of the Robert M. Wynalda, Director Board and Chief Executive Officer (principal executive officer) /s/ Susan K. Jones /s/ Charles E. Christmas - --------------------------------------- -------------------------------------- Susan K. Jones, Director Charles E. Christmas, Senior Vice President, Chief Financial Officer and Treasurer (principal financial and accounting officer) 6 8 EXHIBIT INDEX Exhibit Number Exhibit - ------ ------- 4 Article III of the Articles of Incorporation of Mercantile is incorporated by reference to Exhibit 3.1 of Mercantile's Registration Statement on Form SB-2 (Commission File No. 333-33081) that became effective on October 23, 1997 5 Opinion of Counsel, Dickinson Wright PLLC 23(a) Consent of Crowe, Chizek and Company LLP 23(b) Consent of Dickinson Wright PLLC is included in Exhibit 5 EX-5 2 k59145ex5.txt OPINION OF COUNSEL 1 EXHIBIT 5 [DICKINSON WRIGHT PLLC LETTERHEAD] December 21, 2000 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street Washington, D.C. 20549 RE: MERCANTILE BANK CORPORATION 2000 EMPLOYEE STOCK OPTION PLAN REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are acting as counsel for Mercantile Bank Corporation, a Michigan corporation ("Mercantile"), in connection with its registration on a Form S-8 Registration Statement (the "Registration Statement") of 120,000 shares of its common stock (the "Option Shares") that will be offered pursuant to stock options that are issued under Mercantile's 2000 Employee Stock Option Plan (the "Plan"). This opinion is being delivered pursuant to the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933. In connection with this opinion, we have examined originals or copies of (i) the Plan, (ii) the Articles of Incorporation of Mercantile, (iii) the Bylaws of Mercantile, (iv) resolutions of the Board of Directors of Mercantile relating to the adoption of the Plan and reservation of and issuance of common stock in connection with the Plan, and (v) such other documents as we have deemed appropriate in connection with this opinion. In our examination, we have assumed the genuiness of all signatures, the legal capacity of all natural persons signing or delivering an instrument, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. As to any facts material to this opinion that were not independently established or verified, we have relied upon oral or written statements and representations of officers or other representatives of Mercantile and upon certificates or other documents of public officials. Upon the basis of above, we are of the opinion that the Option Shares have been duly authorized and when issued pursuant to the Plan will be legally issued, fully paid and non-assessable. Counsellors At Law 2 [Dickinson Wright PLLC Letterhead] Securities and Exchange Commission December 21, 2000 Page 2 We consent to the filing of this opinion as Exhibit 5 to the Registration Statement and to the reference to our Firm's name in Item 5, Interest of Named Experts and Counsel, of the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933. Very truly yours, /s/ Dickinson Wright PLLC Counsellors At Law EX-23.(A) 3 k59145ex23-a.txt CONSENT OF CROWE,CHIZEK & COMPANY LLP 1 EXHIBIT 23(a) CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our Report of Independent Auditors dated January 20, 2000 which appears in Mercantile Bank Corporation's Annual Report on Form 10-KSB for the year ended December 31, 1999. /s/ Crowe, Chizek and Company LLP Grand Rapids, Michigan December 21, 2000 -----END PRIVACY-ENHANCED MESSAGE-----