As filed with the Securities and Exchange Commission on October 31, 2006
Registration No. 333-_______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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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.)
310 Leonard Street NW, Grand Rapids, Michigan, 49504
(Address of Principal Executive Offices) (Zip Code)
MERCANTILE BANK CORPORATION
STOCK INCENTIVE PLAN OF 2006
(Full title of the plan)
GERALD R. JOHNSON, JR., CHAIRMAN
Mercantile Bank Corporation
310 Leonard Street NW,
Grand Rapids, Michigan 49504
(Name and address of agent for service)
(616) 406-3000
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
Title of
securities Proposed maximum Proposed Amount of
to be Amount to be offering price maximum aggregate registration
registered registered (1) per share(2) offering price (2) fee
------------ -------------- ---------------- ------------------ ------------
Common Stock 595,714 Shares $38.09 $22,690,747 $2,428
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers an indeterminate number of additional
shares that may be offered or issued to adjust for an increase in the
number of issued shares by reason of any stock dividend, stock split,
recapitalization or other general distribution of common stock or other
securities to holders of common stock.
(2) Estimated pursuant to rule 457(h) and (c) solely for purposes of
calculating the registration fee, based upon the average of the high and
low prices of the common stock on October 25, 2006, as reported on The
Nasdaq Stock Market LLC.
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, 2005.
2. All other reports filed by Mercantile pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report referred to in (1) above.
3. The description of Mercantile's common stock in Item 1 of
Mercantile's amended Form 8-A registration statement dated November 23, 2005,
filed with the Commission under the Exchange Act on November 23, 2005, including
any amendments or reports filed for the purpose of updating the 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 date of filing of such
documents.
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
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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 26, 2006, members of Dickinson Wright PLLC who perform
services for Mercantile owned approximately 5,178 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,
grant 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.
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
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(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 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 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 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.
The Michigan Business Corporation Act permits Mercantile to purchase
insurance on behalf of its directors and officers against liability arising out
of their positions with Mercantile (or positions held with another entity at the
request of Mercantile), whether or not the liabilities would be within the
indemnification provisions described above. 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
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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
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ITEM 8. EXHIBITS.
The following exhibits are filed with this registration statement:
Exhibit
Number Exhibit
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4 Article III of the Articles of Incorporation of Mercantile, as amended
effective July 7, 2004, is incorporated by reference to exhibit 3.1 of
Mercantile's Form 10-Q for the quarter ended June 30, 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.
(a) 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
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the registration statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in 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.
(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.
(b) 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.
(c) 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 such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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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 Grand Rapids and the State of Michigan on
October 26, 2006.
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 26, 2006.
/s/ Betty S. Burton /s/ Susan K. Jones
------------------------------------- ----------------------------------------
Betty S. Burton, Director Susan K. Jones, Director
/s/ David M. Cassard
------------------------------------- ----------------------------------------
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
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/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 Charles E. Christmas, Senior Vice
the Board and Chief Executive Officer President, Chief Financial Officer and
(principal executive officer) Treasurer (principal financial and
accounting officer)
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4 Article III of the Articles of Incorporation of Mercantile, as amended
effective July 7, 2004, is incorporated by reference to exhibit 3.1 of
Mercantile's Form 10-Q for the quarter ended June 30, 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