As filed with the Securities and Exchange Commission on June 27, 2014
Registration No.
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)
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Michigan
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38-3360865
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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of incorporation or organization)
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310 Leonard Street NW, Grand Rapids, Michigan, 49504
(Address of Principal Executive Offices) (Zip Code)
Mercantile Bank Corporation Employee Stock Purchase Plan of 2014
(Full title of the plan)
Charles E. Christmas
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:
Bradley J. Wyatt
Dickinson Wright PLLC
350 S. Main Street, Suite 300
Ann Arbor, Michigan 48104
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☒
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Non-accelerated filer ☐
(Do not check if a smaller reporting company)
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Smaller reporting company ☐
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount to be
registered (1)
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Proposed maximum
offering price per share(2)
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Proposed maximum aggregate
offering price (2)
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Amount of
registration fee
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Common Stock
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250,000 Shares
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$21.41
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$5,352,500
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$689.40
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(1)
Plus an indeterminate number of additional shares which may be required to be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(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 June 24, 2014, as reported on The Nasdaq Stock Market LLC.
Explanatory Note
This registration statement on Form S-8 is filed by Mercantile Bank Corporation ("Mercantile"). It relates to 250,000 shares of Mercantile common stock that may be purchased by participants pursuant to the Mercantile Bank Corporation Employee Stock Purchase Plan of 2014 (the "Plan"), plus an indeterminate number of additional shares of Mercantile common stock that may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions ("Adjustment Shares"). The 250,000 shares consist of: (A) 246,058 newly registered shares; and (B) 3,942 shares of the Company’s Common Stock (the “ESPP Carried Forward Shares”) that were previously registered for offer and sale pursuant to the Registration Statement on Form S-8 (File No. 333-158250) filed and effective March 30, 2009 (the “2009 Registration Statement”). The Registrant is contemporaneously filing a post-effective amendment to the 2009 Registration Statement to deregister the ESPP Carried Forward Shares under the 2009 Registration Statement.
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 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, 2013.
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 paragraph 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 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.
None.
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 (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 bank subsidiaries 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 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
Item 8. Exhibits.
The following exhibits are filed with this registration statement:
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Exhibit
Number
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Exhibit
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4(a)
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Article III of the Articles of Incorporation of Mercantile, is incorporated by reference to Article III, as amended, of exhibit 3.1 of Mercantile's Form 10-Q for the quarter ended June 30, 2008
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4(b)
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Mercantile Bank Corporation Employee Stock Purchase Plan of 2014
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5
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Opinion of Counsel, Dickinson Wright PLLC
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23(a)
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Consent of BDO USA, LLP
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23(b)
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Consent of Dickinson Wright PLLC is included in exhibit 5
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24
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Power of Attorney is included on the signature pages of the
registration statement
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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 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.
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, State of Michigan on June 27, 2014.
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Mercantile Bank Corporation
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By:
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/s/ Charles E. Christmas
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Charles E. Christmas, Senior Vice President, Chief Financial Officer and Treasurer
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Each person whose signature appears below constitutes and appoints Michael H. Price, Robert B. Kaminski, Jr. and Charles E. Christmas, 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 June 26, 2014.
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/s/ Thomas R. Sullivan
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/s/ Calvin D. Murdock
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Thomas R. Sullivan, Chairman of the Board
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Calvin D. Murdock, Director
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/s/ Edward B. Grant
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/s/ David Cassard
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Edward B. Grant, Director
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David Cassard , Director
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/s/ Jeff A. Gardner
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/s/ Michael H. Price
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Jeff A. Gardner, Director
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Michael H. Price, President and Chief Executive Officer (principal executive officer), Director
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/s/ Charles E. Christmas
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Charles E. Christmas, Senior Vice President, Chief Financial Officer and Treasurer (principal accounting officer)
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EXHIBIT INDEX
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Exhibit
Number
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Exhibit
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4(a)
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Article III of the Articles of Incorporation of Mercantile, is incorporated by reference to Article III, as amended, of exhibit 3.1 of Mercantile's Form 10-Q for the quarter ended June 30, 2008
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4(b)
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Mercantile Bank Corporation Employee Stock Purchase Plan of 2014
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5
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Opinion of Counsel, Dickinson Wright PLLC
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23(a)
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Consent of BDO USA, LLP
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23(b)
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Consent of Dickinson Wright PLLC is included in exhibit 5
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24
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Power of Attorney is included on the signature pages of the
registration statement
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Exhibit 4.(b)
MERCANTILE BANK CORPORATION
EMPLOYEE STOCK PURCHASE PLAN OF 2014
SECTION 1
PURPOSE OF PLAN
The purpose of the Mercantile Bank Corporation Employee Stock Purchase Plan of 2014 is to encourage Employees of the Company and the Company’s Subsidiaries to promote the best interests of the Company and to align the interests of Employees with the Company’s shareholders by permitting Eligible Employees to purchase shares of the Company’s Common Stock. The Plan is not intended to qualify as an employee stock purchase plan under Section 423 of the Internal Revenue Code of 1986, as amended.
SECTION 2
DEFINITIONS
The following words have the following meanings unless a different meaning is plainly required by the context:
2.1 “Employee”
means an employee of the Company or one of its Subsidiaries.
2.2 “Board”
means the Board of Directors of the Company.
2.3 “Committee”
means the Compensation Committee of the Board or such other committee as the Board may from time to time designate to administer the Plan.
2.4 “Common Stock”
means the Company’s common stock.
2.5 “Company”
means Mercantile Bank Corporation, a Michigan corporation, and its successors and assigns.
2.6 “Election Form”
means a notice (in a form approved by the Committee) that an Eligible Employee must complete to participate in the Plan and authorize payroll deductions to be made on the Eligible Employee’s behalf under the Plan.
2.7 “Eligible Employees”
means all present and future active full-time Employees and part-time Employees other than temporary employees and interns.
2.8 “Fair Market Value”
as of any Stock Purchase Date means the consolidated closing bid price of the Common Stock reported on The Nasdaq Stock Market (or other stock exchange or quotation system on which the Company’s Common Stock may be traded on the date in question) on such Stock Purchase Date or, if such Stock Purchase Date is not a trading day, the most recent date on which shares of Common Stock were traded on The Nasdaq Stock Market (or such other stock exchange or quotation system). If the Company’s Common Stock is not listed on The Nasdaq Stock Market, or another stock exchange or quotation system on the Stock Purchase Date in question, the Fair Market Value shall be determined by any means deemed fair and reasonable by the Committee, which determination shall be final and binding on all parties.
2.9 “Option Period”
means each calendar quarter, beginning on the first day of each such calendar quarter and ending on the last day of such calendar quarter. The initial Option Period begins on July 1, 2014.
2.10
“Participant”
means an Eligible Employee who has elected to participate in the Plan in accordance with Section 6.1 below.
2.11 “Payroll Deduction Account”
means the account established on behalf of a Participant pursuant to Section 7.1 below, to which his or her payroll deductions shall be credited.
2.12 “Permanent Disability”
or
“Disability”
means an inability of a Participant to perform his or her employment duties due to physical or mental disability sufficient for the Participant to qualify for disability benefits under the general benefits policies of the Company and in effect from time to time.
2.13 “Plan”
means the Mercantile Bank Corporation Employee Stock Purchase Plan of 2014 as set forth herein, as it may be amended from time to time.
2.14 “Purchase Price”
means the purchase price for a share of Common Stock to be paid by a Participant on a Stock Purchase Date, as determined under Section 8.1 below.
2.15 “Retirement”
means the voluntary termination of all employment by a Participant such that the Participant would qualify for retirement benefits from the Company or a Subsidiary under applicable retirement policies in effect from time to time.
2.16 “Share Account”
means the book-entry account established on behalf of a Participant pursuant to Section 8.2 below, to which shares of Common Stock purchased under the Plan shall be credited.
2.17 “Stock Purchase Date”
means a date on which shares of Common Stock are purchased pursuant to the Plan. Unless otherwise determined by the Committee, the Stock Purchase Date shall be the last working day of each Option Period during the term of the Plan.
2.18 “Subsidiary”
means any corporation or other entity of which 50% or more of the outstanding voting stock or voting ownership interest is directly or indirectly owned or controlled by the Company or by one or more Subsidiaries of the Company. The term “Subsidiary” includes present and future Subsidiaries of the Company.
SECTION 3
ADMINISTRATION
3.1 General.
The Committee shall administer the Plan. The Committee may request advice or assistance or employ such other persons as are necessary for proper administration of the Plan, including individuals who are employees of the Company or any Subsidiary. Subject to the express provisions of the Plan, the Committee shall have authority to interpret the Plan, to prescribe, amend and rescind rules, regulations and procedures relating to it, to waive any requirement of the Plan in whole or in part and on a general or case-by-case basis, and to make all other determinations necessary or advisable in administering the Plan, all of which determinations shall be final and binding upon all persons unless otherwise determined by the Board. The Committee shall hold its meetings at such times and places as it considers advisable. Action may be taken by a written instrument signed by all of the members of the Committee and any action so taken shall be as fully effective as if it had been taken at a meeting duly called and held. The Committee shall make such rules and regulations, if any, for the conduct of its business as it considers advisable.
3.2 Indemnification of Committee Members.
Neither any member or former member of the Committee, nor any individual or group to whom authority or responsibility is or has been delegated, shall be personally responsible or liable for any act or omission in connection with the performance of powers or duties or the exercise of discretion or judgment in the administration and implementation of the Plan. Each person who is or shall have been a member of the Committee shall be indemnified and held harmless by the Company from and against any cost, liability or expense imposed or incurred in connection with such person’s or the Committee’s taking or failing to take any action under the Plan or the exercise of discretion or judgment in the administration and implementation of the Plan. Each such person shall be justified in relying on information furnished in connection with the Plan’s administration by any appropriate person or persons.
SECTION 4
STOCK SUBJECT TO THE PLAN
4.1 Number of Shares of Common Stock
. There shall be reserved for issuance to and purchase by Participants under the Plan an aggregate of 250,000 shares of Common Stock, subject to adjustment as provided in Section 4.2. The 250,000 shares consist of (i) 246,058 authorized and unissued shares plus (ii) 3,942 shares not issued under the Company's Employee Stock Purchase Plan of 2002 and carried forward into this Plan. Shares of Common Stock available under the Plan shall be authorized and unissued shares or shares purchased by the Company.
4.2 Adjustments
. In the event of a stock dividend, stock split, recapitalization, merger, reorganization, consolidation, combination or exchange of shares of Common Stock during the term of the Plan, the number of shares reserved and authorized to be issued under the Plan shall be adjusted proportionately, and such other adjustment shall be made as may be considered necessary or equitable by the Committee or the Board. In the event of any other change affecting the Common Stock, such adjustments shall be made as may be considered equitable by the Committee or the Board to give proper effect to such change.
SECTION 5
ELIGIBILITY
Participation in the Plan shall be open only to Eligible Employees. No option rights may be granted under the Plan to any person who is not an Eligible Employee.
SECTION 6
PARTICIPATION AND WITHDRAWAL
6.1 Election Form; Changes to Election Form.
(a) Participation by any Eligible Employee in the Plan shall be entirely voluntary. Any Eligible Employee may become a Participant by completing and delivering an Election Form to the Company. An Eligible Employee shall become a Participant, and payroll deductions shall begin, as soon as administratively feasible after the Company receives the Election Form. The Election Form will authorize specified regular payroll deductions (within the limits specified in Section 7.2 below) from the Participant’s base salary during the time he or she is a Participant.
(b) Payroll deductions shall be made for each Participant in accordance with the Election Form and shall continue until the Participant’s participation terminates, the Election Form is modified or the Plan is terminated or suspended. A Participant may increase or decrease his or her payroll deduction (within the limits specified in Section 7.2 below) by delivering a new Election Form to the Company. The Company or the applicable Subsidiary shall deduct the modified amount from the Participant’s pay as soon as administratively feasible after the new Election Form is properly delivered.
6.2 Withdrawal.
A Participant may elect at any time to terminate his or her participation in the Plan by written notice delivered to the Company. Payroll deductions will cease as soon as administratively feasible after receipt of written notice from the Participant. Upon any termination by a Participant: (a) the Participant shall cease to be a Participant; (b) his or her Election Form shall be revoked insofar as subsequent payroll deductions are concerned; and (c) the amount in the Participant’s Payroll Deduction Account, as well as any unauthorized payroll deductions made after such revocation, shall be promptly refunded to the Participant. An Eligible Employee who has terminated participation in the Plan shall not be eligible for reinstatement as a Participant for a period of three months after such termination.
Except as provided in Section 9 below, if a Participant ceases to be an Eligible Employee, (a) no further payroll deductions shall be made on his or her behalf; and (b) the accumulated balance in his or her Payroll Deduction Account shall promptly be returned to the Participant.
SECTION 7
PAYROLL DEDUCTIONS
7.1 Payroll Deduction Account
. The Company and/or its Subsidiaries will maintain a Payroll Deduction Account for each Participant. Authorized payroll deductions shall begin as soon as administratively feasible after a Participant has elected (in accordance with Section 6.1) to participate in the Plan. Payments made by Participants through payroll deductions shall be credited to each Participant’s Payroll Deduction Account. No amounts other than payroll deductions authorized under the Plan may be credited to a Participant’s Payroll Deduction Account, unless the Committee otherwise consents in writing.
7.2 Limits on Payroll Deductions
. The amount of the payroll deduction specified by a Participant in his or her Election Form shall not be less than $5 or more than $200 for each pay period or such other amount as the Committee may determine in its sole discretion from time to time. A Participant may only take payroll deductions from his or her base salary.
SECTION 8
PURCHASE AND SALE OF COMMON STOCK
8.1 Purchase Price
. The Purchase Price for each share of Common Stock purchased on a Stock Purchase Date shall be the Fair Market Value of the Common Stock as of that Stock Purchase Date.
8.2 Method of Purchase.
(a) Except as otherwise provided herein, each Participant having funds in his or her Payroll Deduction Account on a Stock Purchase Date shall be deemed, without any further action, to have been granted and to have exercised his or her option to purchase the number of whole shares of Common Stock which the funds in his or her Payroll Deduction Account could purchase on the Stock Purchase Date. If a Participant withdraws from the Plan before a Stock Purchase Date, the related option shall expire immediately. No fractional shares shall be issued or purchased under the Plan. Funds not used to purchase whole shares shall remain in the Participant’s Payroll Deduction Account for future purchases. If the number of available shares on a Stock Purchase Date is not sufficient to exhaust all Payroll Deduction Accounts, the available shares shall be allocated in proportion to the funds available in each Payroll Deduction Account and the Plan shall thereafter terminate.
(b) All whole shares purchased shall be credited in book-entry form to separate Share Accounts for Participants. Any cash dividends paid with respect to the shares in a Participant’s Share Account shall be distributed to the Participant or the Participant may choose to apply cash dividends to the purchase of additional shares by enrolling in the Company's Dividend Reinvestment Plan. Any non-cash dividends paid with respect to the shares in a Participant’s Share Account shall be added to the shares held for a Participant in his or her Share Account. Participants will be notified not less than annually as to the amount and status of their Payroll Deduction Accounts and Share Accounts.
8.3 Title of Accounts
. Each Share Account will be in the name of the Participant.
8.4 Rights as a Shareholder
. After a Participant’s Payroll Deduction Account has been charged with the amount of the Purchase Price, the Participant shall have all of the rights and privileges of a shareholder of the Company with respect to the shares purchased under the Plan and held in the Share Account, whether or not certificates representing the shares shall have been issued. A Participant may withdraw or sell the shares in his or her Share Account at any time by providing written notice to the Company's transfer agent.
SECTION 9
RIGHTS ON DEATH, RETIREMENT OR PERMANENT DISABILITY
9.1 Death.
If a Participant dies during an Option Period, no further contributions on behalf of the deceased Participant shall be made. The executor or administrator of the deceased Participant’s estate may elect to withdraw the balance in the Participant’s Payroll Deduction Account by notifying the Company in writing within a reasonable period before the Stock Purchase Date in respect of such Option Period. If no election to withdraw has been made, the balance accumulated in the deceased Participant’s Payroll Deduction Account shall be used to purchase shares of Common Stock on the next Stock Purchase Date in accordance with Section 8 of the Plan. The Company shall deliver a written statement of the number of whole shares that such deceased Participant purchased under the Plan to his or her executor or administrator upon request. The Company shall deliver any amounts remaining in the deceased Participant’s Payroll Deduction Account after the last applicable Stock Purchase Date to his or her executor or administrator.
9.2 Retirement or Permanent Disability
. If, during an Option Period, a Participant (a) Retires or (b) incurs a Permanent Disability, no further contributions on behalf of the Retired or Disabled Participant shall be made. A Retired or Disabled Participant may elect to withdraw the balance in his or her Payroll Deduction Account by notifying the Company in writing within a reasonable period before the Stock Purchase Date in respect of such Option Period. If no election to withdraw has been made, the balance accumulated in the Retired or Disabled Participant’s Payroll Deduction Account shall be used to purchase shares of Common Stock on the next Stock Purchase Date in accordance with Section 8 of the Plan. The Company shall deliver a written statement of the number of whole shares that such Retired or Disabled Participant purchased under the Plan to such Retired or Disabled Participant’s upon request. The Company shall deliver any amounts remaining in the Retired or Disabled Participant’s Payroll Deduction Account after the last applicable Stock Purchase Date to such Retired or Disabled Participant.
If a Retired or Disabled Participant dies during the Option Period of such Participant’s Retirement or Permanent Disability and such Participant did not notify the Company of his or her desire to withdraw the balance in his or her Payroll Deduction Account, the executor or administrator of such Participant’s estate or other legal title holder shall have all the rights provided pursuant to Section 9.1.
SECTION 10
GENERAL PROVISIONS
10.1 Rights Not Transferable
. Rights under the Plan are not transferable by a Participant other than by will or the laws of descent and distribution, and are exercisable during his or her lifetime only by the Participant.
10.2 Amendment or Suspension of the Plan
. The Committee or the Board may at any time, and from time to time, amend the Plan in any respect or suspend the operation of the Plan.
10.3 Termination of the Plan
. The Plan and all rights of Employees hereunder shall terminate at the earliest of: (a) when all shares of Common Stock reserved under the Plan have been purchased; or (b) at any time, at the discretion of the Committee or the Board. Notice of termination shall be given to all Participants, but any failure to give notice shall not impair the termination. Upon termination of the Plan, all amounts in Payroll Deduction Accounts of Participants shall promptly be returned to such Participants.
10.4 Governing Law; Compliance with Law
. The Plan shall be construed in accordance the laws of the State of Michigan. The Company’s obligation to sell and deliver shares of Common Stock hereunder shall be subject to all applicable federal and state laws, rules and regulations and to such approvals by any regulatory or governmental agency as may, in the opinion of counsel for the Company, be required. The Company may make such provisions as it may deem appropriate for the withholding of any taxes or payment of any taxes which it determines it may be required to withhold or pay in connection with a Participant’s participation in the Plan.
10.5 Not an Employment Contract
. The Plan shall not be deemed to constitute a contract of employment between the Company or any Subsidiary and any Eligible Employee or Participant or to be consideration or inducement for the employment of any Eligible Employee or Participant. The Plan shall not be deemed to give any Participant or Eligible Employee the right to be retained as an Employee or in any other service of the Company or any Subsidiary, or to interfere with the right of the Company or any Subsidiary to discharge any Participant or Eligible Employee at any time regardless of the effect that such discharge shall have upon such person as a participant in the Plan.
10.6 Effective Dates
. The Plan was approved by the Board of Directors on June 26, 2014, effective as of July 1, 2014. The first Option Period under the Plan shall commence on July 1, 2014.
10.7 Investment Intent
. The Committee may require a Participant to confirm that he or she is purchasing with investment intent and not with a view to resale or other distribution.
10.8 Severability.
In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of the Plan and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.
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350 S. MAIN STREET, SUITE 300
ANN ARBOR, MI 48104-2131
TELEPHONE: (734) 623-7075
FACSIMILE: (734) 623-1625
http://www.dickinsonwright.com
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Exhibit 5
June 27, 2014
Mercantile Bank Corporation
310 Leonard Street NW
Grand Rapids, Michigan 49504
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Re:
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Mercantile Bank Corporation
Employee Stock Purchase Plan of 2014
Registration Statement on Form S-8
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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 "Plan Shares") that may be issued under the Mercantile Bank Corporation Employee Stock Purchase Plan of 2014 (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 (the "Act").
As counsel to Mercantile and in connection with this opinion, we have examined and relied upon copies, certified or otherwise identified to our satisfaction, of (i) the Articles of Incorporation of Mercantile, (ii) the Bylaws of Mercantile, (iii) records of actions of the shareholders and Board of Directors of Mercantile, (iv) resolutions of the Board of Directors of Mercantile relating to the adoption of the Plan, (v) the Registration Statement, and (vi) such other documents as we have deemed appropriate in connection with this opinion.
In our examination, we have assumed the genuineness 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, the conformity to original documents of all documents submitted to us as certified, telecopied, facsimile, conformed or photostatic copies, and the absence of any understandings, waivers, or amendments which would vary the terms of any document which we have reviewed. As to various questions of fact material to this opinion, 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. We have further assumed that this opinion will be used only in connection with the offer and sale of Plan Shares while the Registration Statement remains in effect under the Act.
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Mercantile Bank Corporation
June 27, 2014
Page 2
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DICKINSON WRIGHT PLLC
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Based upon the foregoing, and subject to the qualifications and limitations stated herein, it is our opinion that the Plan Shares have been duly authorized and, once the Registration Statement has become effective under the Act, when and to the extent Plan Shares are duly issued, sold, and paid for in accordance with the terms of the Plan, such Plan Shares will be validly issued, fully paid and non-assessable.
Our opinions expressed herein are subject to bankruptcy, insolvency and other similar laws affecting the rights and remedies of creditors generally and general principles of equity.
We have not reviewed for purposes of this opinion, and this opinion does not address: any ERISA laws, rules or regulations; any Federal or state securities or "blue sky" laws, rules or regulations; any Federal or state banking laws, rules or regulations; any laws relating to fiduciary duties; or any Federal, state or local taxation laws, rules, or regulations.
This opinion is limited in all respects to matters arising under the Business Corporation Act of the State of Michigan, and, to the extent addressed herein, the Federal law of the United States of America.
This opinion is limited to the matters set forth herein and no opinion is intended to be implied or may be inferred beyond those expressly stated herein. This opinion is predicated solely upon laws and regulations in existence as of the current date, and as they currently apply, and as to the facts as they currently exist. We assume no obligation to revise or supplement this opinion should such matters change by legislative action, judicial decision or otherwise.
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, Interests 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 Act or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Dickinson Wright PLLC
BJW/MTR