SECOND AMENDMENT TO THE
MERCANTILE BANK OF MICHIGAN
AMENDED AND RESTATED
EXECUTIVE DEFERRED COMPENSATION AGREEMENT
DATED NOVEMBER 18, 2006
AND AMENDED OCTOBER 23, 2008
FOR
[NAME OF EXECUTIVE]
THIS
SECOND AMENDMENT is adopted this 23rd day of October, 2008, by and
between Mercantile Bank of Michigan, a state-chartered commercial
bank located in Grand Rapids, Michigan (the “Company”),
and [Name of Executive] (the “Executive”).
The
Company and the Executive executed the Amended and Restated
Executive Deferred Compensation Agreement effective as of
November 18, 2006, and executed a First Amendment on October
25, 2007 (the “Agreement”).
The
undersigned hereby amend the Agreement for the purpose of providing
the Executive with an election of a specified time distribution.
Therefore, the following changes shall be made:
Section 1.13 of the Agreement shall be deleted in its
entirety and replaced by the following:
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1.13
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“ Deferral Election
Form ” means each form established from time to time by
the Plan Administrator that the Executive completes, signs and
returns to the Plan Administrator to designate the amount of
Deferrals and, with respect to Deferrals made on and after
January 1, 2009, to elect the time and form of a Specified
Time Distribution.
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The following Sections 1.24a and 1.24b shall be added to
the Agreement immediately following Section 1.24 :
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1.24a
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“ Specified Time
Distribution ” means a distribution made at a specified
time pursuant to an Executive’s election on a Specified Time
Distribution Election Form or a Deferral Election Form.
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1.24b
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“ Specified Time
Distribution Election Form ” means the form established
from time to time by the Plan Administrator that the Executive
completes, signs and returns to the Plan Administrator to designate
the time and form of a Specified Time Distribution.
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The following Sections 4.0, 4.0.1, 4.0.1.1, 4.0.1.2, 4.0.2,
4.0.2.1 and 4.0.2.2 shall be added to the Agreement immediately
before Section 4.1:
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4.0
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Specified Time
Distribution . If the Executive elects a Specified
Time Distribution, the Company shall distribute to the Executive
the benefit described in this Section 4.0. Notwithstanding the
prior sentence, if a
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1
distribution is
payable under Section 4.1, 4.2, 4.3, 4.4 or 4.5, then the
distribution will be made under Section 4.1, 4.2, 4.3, 4.4 or
4.5 and not under this Section 4.0.
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4.0.1
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Deferrals Made on or Before
December 31, 2008 . For Deferrals made on or before
December 31, 2008, the Executive may elect on or before
November 30, 2008, a distribution under this
Section 4.0.1. This election may be made notwithstanding any
restriction to the contrary in Section 4.8.
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4.0.1.1
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Amount of Benefit
.
The benefit under this
Section 4.0.1 is the portion of the Deferral Account balance
as of December 31, 2008 elected by the Executive on the
Specified Time Distribution Election Form.
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4.0.1.2
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Distribution of Benefit
. The Company shall pay
the benefit under this Section 4.0.1 to the Executive,
commencing on or after March 1, 2009, as elected by the
Executive on the Specified Time Distribution Election
Form.
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4.0.2
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Deferrals Made on or After
January 1, 2009 . For Deferrals made on or after
January 1, 2009, the Executive may elect a distribution under
this Section 4.0.2. This election shall be made for each Plan
Year and shall only apply to the Deferrals made for that Plan
Year.
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4.0.2.1
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Amount of Benefit
.
The benefit under this
Section 4.0.2 is the portion or all of the Deferrals for the
Plan Year beginning on or after January 1, 2009 for which a
Specified Time Distribution election is made, together with accrued
interest, as elected by the Executive on the Deferral Election
Forms.
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4.0.2.2
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Distribution of Benefit
. The Company shall pay
the benefit under this Section 4.0.2 to the Executive,
commencing on or after the earliest date permitted by Code
Section 409A, as elected by the Executive on the Deferral
Election Forms.
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Section 4.8 shall be deleted in its entirety and replaced
by the following:
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4.8
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Change in Form or Timing of
Distributions . For distribution of benefits
under this Article 4, the Executive may elect to delay the
timing or change the form of distributions by submitting the
appropriate Election Form(s) or Specified Time Distribution
Election Form(s) to the Plan Administrator. Any such
election:
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(e)
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may
not accelerate the time or schedule of any distribution, except as
provided in Code Section 409A;
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(f)
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must, for benefits distributable
under Section 4.0, be made at least twelve (12) months
prior to the first scheduled distribution;
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(g)
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must, for benefits distributable
under Sections 4.0, 4.1, 4.2 and 4.4, delay the commencement
of distributions for a minimum of five (5) years from the date the
first distribution was originally scheduled to be made;
and
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(h)
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must take effect not less than
twelve (12) months after the amendment is made.
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The
restrictions in paragraphs (a) through (d) above do not
apply to the Executive’s election to receive a distribution
under Section 4.0.1.
For purposes of
any change under this Section 4.8, a distribution paid in the
form of installments shall be deemed to be a single
payment.
The following Sections 11.14 and 11.15 shall be added to
the Agreement at the end of Article 11:
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11.14
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Deduction Limitation on Benefit
Payments .
If the Company reasonably anticipates that the Company’s
deduction with respect to any distribution under this Agreement
would be limited or eliminated by application of Code
Section 162(m), then to the extent deemed necessary by the
Company to ensure that the entire amount of any distribution from
this Agreement is deductible, the Company may delay payment of any
amount that would otherwise be distributed under this Agreement.
The delayed amounts shall be distributed to the Executive (or the
Beneficiary in the event of the Executive’s death) at the
earliest date the Company reasonably anticipates that the deduction
of the payment of the amount will not be limited or eliminated by
application of Code Section 162(m).
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2
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11.15
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Compliance with
Section 409A . This Agreement shall be
interpreted and administered consistent with Code
Section 409A.
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IN WITNESS OF
THE ABOVE , the Company and the Executive hereby agree to this
Second Amendment.
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EXECUTIVE:
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MERCANTILE BANK
OF MICHIGAN:
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By
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Title
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3
MERCANTILE BANK
OF MICHIGAN
Amended and Restated Executive Deferred Compensation Agreement
Deferral Election Form — Base Salary
Specified Time Distribution
Election — For Amount Deferred
On or Before December 31, 2008
THIS ELECTION MUST BE MADE BY
NOVEMBER 30, 2008
Amount of Specified Time
Distribution
[Initial and
Complete One]
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A.
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I
elect to receive ___% of my Deferral Account balance as of December
31, 2008, in the manner described below commencing on ___ ( must
be on or after March 1, 2009) .
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B.
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I
elect no
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