-----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, MpvETzXjNd1XFxUqUDJ+c91kW3yHLns7ekLoLTbIY/xoMPTRT1fBIeN/edKz1hM8 Afy20yB2QSdw+JE316p6Mw== 0000950124-04-004837.txt : 20041015 0000950124-04-004837.hdr.sgml : 20041015 20041015145328 ACCESSION NUMBER: 0000950124-04-004837 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20041015 DATE AS OF CHANGE: 20041015 EFFECTIVENESS DATE: 20041015 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: 1933 Act SEC FILE NUMBER: 333-119767 FILM NUMBER: 041080904 BUSINESS ADDRESS: STREET 1: 5650 BYRON CENTER AVENUE S. W. CITY: WYOMING STATE: MI ZIP: 49509 BUSINESS PHONE: 616 406-3777 MAIL ADDRESS: STREET 1: 5650 BYRON CENTER AVENUE S. W. CITY: WYOMING STATE: MI ZIP: 49509 S-8 1 k88674sv8.txt REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on October 15, 2004 Registration No. 333--_______ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ----------------------- MERCANTILE BANK CORPORATION (Exact name of registrant as specified in its charter) MICHIGAN 38-3360865 (State or other jurisdiction of (I.R.S. Employer of incorporation or organization) Identification No.) 5650 Byron Center Avenue SW, Wyoming, Michigan, 49509 (Address of Principal Executive Offices) (Zip Code) MERCANTILE BANK CORPORATION 2004 EMPLOYEE STOCK OPTION PLAN (Full title of the plan) GERALD R. JOHNSON, JR., CHAIRMAN Mercantile Bank Corporation 5650 Byron Center Avenue SW Wyoming, Michigan 49509 (Name and Address of Agent for service) Telephone number, including area code, of agent for service: (616) 406-3000 COPIES OF COMMUNICATIONS TO: JEROME M. SCHWARTZ Dickinson Wright PLLC 500 Woodward Avenue, Suite 4000 Detroit, Michigan 48226 Approximate date of proposed public offering: As soon as practicable after the effective date of this Registration Statement
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 250,000 Shares $ 37.84 $ 9,460,000 $ 1,199 - ----------------------------------------------------------------------------------------------------------------------------
*Includes an intermediate 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 last sale price on October 13, 2004, as reported on the Nasdaq National Market. PART I INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION. Not filed as part of this Registration Statement pursuant to Note to Part I of Form S-8. ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Not filed as part of this Registration Statement pursuant to Note to Part I of Form S-8. 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-K for the year ended December 31, 2003. 2. Mercantile's Quarterly Reports on Form 10-Q for the periods ending March 31, 2004 and June 30, 2004. 3. Mercantile's Current Reports on Form 8-K, dated August 16, 2004 and September 21, 2004. 4. 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 in this Registration Statement by reference and to be a part of this Registration Statement from the dates of filing of such documents. 1 Any statements contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. As of October 14, 2004, members of Dickinson Wright PLLC who perform services for Mercantile owned approximately 4,517 shares of common stock of Mercantile. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Indemnification Sections 561-571 of the Michigan Business Corporation Act, as amended, grants Mercantile broad powers to indemnify any person in connection with legal proceedings brought against that person by reason of their present or past status as an officer or director of Mercantile, provided that the person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to Mercantile's best interests, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The Michigan Business Corporation Act also gives Mercantile broad powers to indemnify defined persons against expenses and reasonable settlement payments in connection with any action by or in the right of Mercantile, provided the person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to Mercantile's best interests, except that no indemnification may be made if that person is adjudged to be liable to Mercantile unless and only to the extent the court in which that action was brought determines upon application that, despite the adjudication, but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for reasonable expenses as the court deems proper. In addition, to the extent that any specified person is successful in the defense of any defined legal proceeding, Mercantile is required by the Michigan Business Corporation Act to indemnify him or her against expenses, including attorneys' fees, that are actually and reasonably incurred in connection with the proceeding. Mercantile's Articles of Incorporation provide that it 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. 2 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 its subsidiary, Mercantile Bank of West Michigan, to their respective directors or officers otherwise permitted under the Michigan Business Corporation Act or the Michigan Banking Code. With respect to derivative actions, the Bylaws provide that Mercanitle 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 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. 3 Under an insurance policy maintained by Mercantile, its directors and officers are insured within the limits and subject to the limitations of the policy, against specified expenses in connection with the defense of specified claims, actions, suits or proceedings, and specified liabilities which might be imposed as a result of claims, actions, suits or proceedings, which may be brought against them by reason of being or having been directors and officers of Mercantile. Limitation of Director Liability Section 209(1)(c) of the Michigan Business Corporation Act permits corporations to limit the personal liability of their directors in certain circumstances. However, under the Michigan Business Corporation Act, a corporation may not eliminate or limit a director's liability to the corporation or its shareholders for money damages for any action taken or any failure to take any action as a director for any of the following: (1) the amount of a financial benefit received by a director to which he or she is not entitled; (2) intentional infliction of harm on the corporation or its shareholders; (3) a violation of Section 551 of the Michigan Business Corporation Act; and (4) an intentional criminal act. Mercantile's Articles of Incorporation provide that its directors shall not be personally liable to it or its shareholders for monetary damages for breach of fiduciary duty, except for liability (1) for any breach of the director's duty of loyalty to Mercantile or its shareholders; (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (3) for a violation of Section 551(1) of the Michigan Business Corporation Act; or (4) for any transaction from which the director derived any improper personal benefit. Under the Michigan Business Corporation Act, if prior to October 24, 1997 the articles of incorporation of a corporation contained a provision which, subject to exceptions, eliminated liability of a director as Mercantile's does, that provision is considered to eliminate liability of a director to the extent permitted in Section 209(1)(c) of the Michigan Business Corporation Act. Pursuant to Mercantile's Articles of Incorporation, if the Michigan Business Corporation Act is amended after the date of the Articles of Incorporation to authorize corporate action eliminating or limiting the personal liability of directors, then the liability of a director of Mercantile shall be eliminated or limited to the fullest extent permitted by the Michigan Business Corporation Act, as so amended. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable 4 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, as amended effective July 7, 2004, is incorporated by reference to Exhibit 4 of Mercantile's Registration Statement on Form S-8 (Commission file number 333-117763), filed with the Commission on July 29, 2004 5 Opinion of Counsel, Dickinson Wright PLLC 23(a) Consent of Crowe Chizek and Company LLC 23(b) Consent of Dickinson Wright PLLC is included in Exhibit 5 24 Power of Attorney is included on the signature pages of the Registration Statement 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 5 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. (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. 6 SIGNATURES The Registrant. 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 of Wyoming and the State of Michigan on October 14, 2004. MERCANTILE BANK CORPORATION By /s/ Gerald R. Johnson, Jr. ---------------------------------------- Gerald R. Johnson, Jr., Chairman of the Board and Chief Executive Officer Each person whose signature appears below constitutes and appoints Gerald R. Johnson, Jr. and Michael H. Price, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him or her, and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. 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 October 14, 2004. /s/ Betty S. Burton /s/ Susan K. Jones - --------------------- -------------------- Betty S. Burton, Director Susan K. Jones, Director /s/ David M. Cassard /s/ Lawrence W. Larsen - ----------------------------- ------------------------ David M. Cassard, Director Lawrence W. Larsen, Director /s/ Edward J. Clark /s/ Calvin D. Murdock - ----------------------- ----------------------- Edward J. Clark, Director Calvin D. Murdock, Director /s/ Michael H. Price - --------------------- ---------------------- Peter A. Cordes, Director Michael H. Price, President and Chief Operating Officer, and Director /s/ C. John Gill /s/ Merle J. Prins - ------------------ --------------------- C. John Gill, Director Merle J. Prins, Director /s/ Doyle A. Hayes /s/ Dale J. Visser - -------------------- -------------------- Doyle A. Hayes, 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/ Charles E. Christmas - ---------------------------- -------------------------- Gerald R. Johnson, Jr., Chairman of the Charles E. Christmas, Senior Vice Board and Chief Executive Officer President, Chief Financial Officer (principal executive officer) and Treasurer (principal financial and accounting officer) 7 EXHIBIT INDEX Exhibit Number Exhibit ------- ------- 4 Article III of the Articles of Incorporation of Mercantile, as amended effective July 7, 2004, is incorporated by reference to Exhibit 4 of Mercantile's Registration Statement on Form S-8 (Commission file number 333-117763), filed with the Commission on July 29, 2004 5 Opinion of Counsel, Dickinson Wright PLLC 23(a) Consent of Crowe Chizek and Company LLC 23(b) Consent of Dickinson Wright PLLC is included in Exhibit 5 24 Power of Attorney is included on the signature pages of the Registration Statement i EX-5 2 k88674exv5.txt OPINION OF COUNSEL, DICKINSON WRIGHT PLLC EXHIBIT 5 [DICKINSON WRIGHT LOGO] 500 WOODWARD AVENUE, SUITE 4000 DETROIT, MICHIGAN 48226-3425 TELEPHONE: (313) 223-3500 FACSIMILE: (313) 223-3598 http://www.dickinson-wright.com October 15, 2004 Securities and Exchange Commission Judiciary Plaza 450 Fifth Street Washington, D.C. 20549 RE: MERCANTILE BANK CORPORATION 2004 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 250,000 shares of its common stock (the "Option Shares") that will be offered pursuant to stock options that are issued under Mercantile's 2004 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. 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 EX-23.(A) 3 k88674exv23wxay.txt CONSENT OF CROWE CHIZEK AND COMPANY LLC EXHIBIT 23(a) CONSENT OF INDEPENDENT REGISTERED PUBIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 22, 2004 which appears in Mercantile Bank Corporation's Annual Report on Form 10-K for the year ended December 31, 2003. /s/ Crowe Chizek and Company LLC Grand Rapids, Michigan October 14, 2004 -----END PRIVACY-ENHANCED MESSAGE-----