As filed with the Securities and Exchange Commission on July 29, 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 Identification No.)
of incorporation or organization)
5650 Byron Center Avenue SW, Wyoming, Michigan, 49509
(Address of Principal Executive Offices) (Zip Code)
MERCANTILE BANK OF WEST MICHIGAN 401(k) 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 100,000 Shares $ 34.00 $ 3,400,000 $ 431
*In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
**Based upon the last sale price reported on the Nasdaq National Market on July
27, 2004.
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") and the Mercantile Bank of West
Michigan 401(k) Plan (the "Plan") hereby incorporate 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. The Plan's Annual Report on Form 11-K for the year ended December
31, 2003.
3. Mercantile's Quarterly Report on Form 10-Q for the period ending
March 31, 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 the Company or the
Plan 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.
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.
Not Applicable.
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 our 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 the Company, as amended
effective July 7, 2004
5 Copy of the Internal Revenue Service
determination letter that the Plan is
qualified under section 401 of the
Internal Revenue Code
23 Consent of Crowe Chizek and Company LLC
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 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.
5
(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 July 22,
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 July 22, 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/ Peter A. Cordes /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
------------------ --------------------
7
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)
SIGNATURE
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustee (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Wyoming, State of
Michigan on this 22nd day of July, 2004.
MERCANTILE BANK OF
WEST MICHIGAN 401(k) PLAN
By /s/ Gerald R. Johnson, Jr.
-------------------------------------
Gerald R. Johnson, Jr., Trustee
8
EXHIBIT INDEX
Exhibit
Number Exhibit
------ -------
4 Article III of the Articles of
Incorporation of the Company, as amended
effective July 7, 2004
5 Copy of the Internal Revenue Service
determination letter that the Plan is
qualified under Section 401 of the
Internal Revenue Code
23 Consent of Crowe Chizek and Company LLC
24 Power of Attorney is included on the
signature pages of the Registration
Statement