-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OBLdBm82Ng8Gu7dgulDXQ3ZBljB5klTtUFrKYOa7NQb5+clcEqyM9ooRmqEyqYwK D1ax2xTKHP4JotvzsOGlpg== 0001029869-98-001136.txt : 19980921 0001029869-98-001136.hdr.sgml : 19980921 ACCESSION NUMBER: 0001029869-98-001136 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980918 EFFECTIVENESS DATE: 19980918 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERRILL MERCHANTS BANCSHARES INC CENTRAL INDEX KEY: 0000913072 STANDARD INDUSTRIAL CLASSIFICATION: FUNCTIONS RELATED TO DEPOSITORY BANKING, NEC [6099] IRS NUMBER: 010471507 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-63781 FILM NUMBER: 98711887 BUSINESS ADDRESS: STREET 1: 201 MAIN ST CITY: BANGOR STATE: ME ZIP: 04401 BUSINESS PHONE: 2079424800 MAIL ADDRESS: STREET 1: 201 MAIN STREET CITY: BANGOR STATE: ME ZIP: 04401 S-8 1 MERRILL MERCHANTS BANCSHARES, INC. FORM S-8 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 MERRILL MERCHANTS BANCSHARES, INC. ----------------------------------------------------------- (Exact name of issuer as specified in its charter) Maine 01-0471507 ------------------------ ----------------------------------- (State of Incorporation) (IRS Employer Identification Number) 201 Maine Street, Bangor, Maine 04401 ------------------------------------- (Address of Principal Executive Offices) (207) 942-4800 --------------------------------------------------- (Registrant's telephone number, including area code) MERRILL MERCHANTS BANCSHARES, INC. 1993 STOCK OPTION PLAN --------------------------------------------------------- (Full title of the Plan) Edwin N. Clift President Merrill Merchants Bancshares, Inc. 201 Maine Street Bangor, Maine 04401 (207) 942-4800 --------------------------------------------------------- (Name, address and telephone number of agent for service) COPY TO: Harry A. Hanson, III, Esquire Hutchins, Wheeler & Dittmar A Professional Corporation 101 Federal Street Boston, Massachusetts 02110 (617) 951-6600 1 CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum Maximum Title of Securities Amount to be Offering Price Per Aggregate Amount of to be Registered Registered(1) Share Offering Price Registration Fee - ---------------- ------------- ------ -------------- ---------------- Common Stock 318,789 $ 4.59 $1,463,241.51 $ 431.66 51,930 4.74 246,148.20 72.61 93,393 5.33 497,784.69 146.85 29,295 6.28 183,972.60 54.27 27,405 6.77 185,531.85 54.73 53,100 6.87 364,797.00 107.61 par value 71,988 $13.75(3) 989,835.00 292.00 $1.00 per share Totals: 645,900 $3,931,310.85 $1,159.73
- ---------------------------------- (1) Also registered hereunder are such additional number of shares of common stock, presently indeterminable, as may be necessary to satisfy the antidilution provisions of the Plan to which this Registration Statement relates. (2) All such shares are issuable upon exercise of outstanding options with fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering price and the fee have been computed upon the basis of the price at which the options may be exercised. (3) None of such shares are subject to outstanding options. The exercise price of such options shall be determined at the time of grant. Accordingly, pursuant to Rule 457(c) and (h), the price of $13.75 per share, which is the average of the high and low sale prices reported on the Nasdaq National Market on September 14, 1998, is set forth solely for purposes of calculating the filing fee. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference - ------ --------------------------------------- The Company hereby incorporates by reference the documents listed in (a) through (c) below. In addition, all documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (prior to filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold) shall be deemed to be incorporated by reference in this Registration Statement and to be a part thereof from the date of filing of such documents. (a) The Company's latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, which contains either directly or by incorporation by reference, audited financial statements for the Company's latest fiscal year for which such statements have been filed. (b) All of the reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual report or the prospectus referred to in (a) above. (c) The description of the Company's Common Stock which is contained in the Registration Statement filed by the Company on under the Securities Exchange Act of 1934, by including any amendment or report filed for the purpose of updating such description. Item 4. Description of Securities - ------ ------------------------- Not Applicable. 3 Item 5. Interests of Named Experts and Counsel - ------ -------------------------------------- The financial statements and schedules incorporated by reference in this Registration Statement have been audited by Berry Dunn McNeil & Parker, independent accountants, as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in giving said reports. The validity of the authorization and issuance of the Common Stock offered hereby will be passed upon for the Company by Hutchins, Wheeler & Dittmar, a Professional Corporation, Boston, Massachusetts. Item 6. Indemnification of Directors and Officers - ------ ----------------------------------------- The Articles of Incorporation and the By-laws provide that, except to the extent prohibited by Maine Business Corporation Act ("MBCA"), the Company's directors shall not be personally liable to the Company or its shareholders for monetary damages for any breach of fiduciary duty as directors of the Company. Section 19 of the MBCA empowers a corporation to purchase and maintain insurance and indemnity for 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) by reason of the fact that such person is or was a director or officer of the Company, or is or was serving at the request of the Company as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding; provided however, that this provision shall not eliminate or limit liability in the case where such person is found (i) not to have acted honestly or on the reasonable belief that such person's action was in or not opposed to the best interests of the corporation or its shareholders, or (ii) with respect to criminal action, to have had reasonable cause to believe that such person's conduct was unlawful. The MBCA provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation's bylaws, any agreement, a vote of shareholders or otherwise. The Articles of Incorporation and the By-laws eliminate the personal liability and provide indemnification to the fullest extent permitted by Section 19 of the MBCA. Item 7. Exemption from Registration Claimed - ------ ----------------------------------- Not Applicable. Item 8. Exhibits - ------ -------- 4
Number Description ------ ----------- 4.1 Specimen of Stock Certificate representing shares of Common Stock 4.2 Merrill Merchants Bancshares, Inc. 1993 Stock Option Plan, as amended and restated (incorporated by reference to the Company's Registration Statement on Form SB-2 filed with the Securities and Exchange Commission (Reg. No. 333-56197)) 5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation, as to legality of shares being registered and consent of Hutchins, Wheeler & Dittmar, A Professional Corporation 23.1 Consent of Berry, Dunn, McNeil & Parker
Item 9. Undertakings - ------ ------------ The undersigned Registrant hereby undertakes the following: (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; (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)(l)(i) and (a)(l)(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 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 the purpose 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) The undersigned registrant hereby undertakes, that, 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 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. * * * * * * * * * * * * * * * * * * 6 SIGNATURES 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 Bangor, Maine on September 18, 1998. MERRILL MERCHANTS BANCSHARES, INC. /s/ Edwin N. Clift ----------------------------------------- Edwin N. Clift President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following person in the capacities and on the dates indicated.
NAME CAPACITY DATE -------- ---- /s/ Edwin N. Clift Chief Executive Officer, President, Director September 18, - ----------------------------------- (principal executive officer) 1998 Edwin N. Clift /s/ Deborah A. Jordan Treasurer (principal financial and accounting September 18, - ----------------------------------- officer) 1998 Deborah A. Jordan /s/ William C. Bullock, Jr. Chairman, Director September 18, - ----------------------------------- 1998 William C. Bullock, Jr. /s/ Joseph H. Cyr Director September 18, - ---------------------------------- 1998 Joseph H. Cyr /s/ Perry B. Hansen Director, Secretary September 18, - ---------------------------------- 1998 Perry B. Hansen /s/ Leonard E. Minsky Director September 18, - ---------------------------------- 1998 Leonard E. Minsky /s/ Joseph Sewall Director September 18, - ---------------------------------- 1998 Joseph Sewall /s/ Dennis L. Shubert, M.D. Director September 18, - ---------------------------------- 1998 Dennis L. Shubert, M.D. /s/ Susan B. Singer Director September 18, - ---------------------------------- 1998 Susan B. Singer /s/ Harold S. Wright Director September 18, - ---------------------------------- 1998 Harold S. Wright
7 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 EXHIBITS to FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 MERRILL MERCHANTS BANCSHARES, INC. (Exact name of registrant as specified in its charter) 8 EX-4.1 2 FORM OF COMMON STOCK CERTIFICATE NUMBER SHARES 000001 CUSIP 59021H 103 INCORPORATED UNDER THE LAWS OF THE STATE OF MAINE MERRILL MERCHANTS BANCSHARES, INC. THIS CERTIFIES THAT IS THE OWNER OF FULLY PAID AND NON ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE OF $1.00 PER SHARE OF MERRILL MERCHANTS BANCSHARES, INC. (the "Corporation") a Maine corporation. The shares represented by this certificate are transferable only on the stock transfer books of the Corporation by the holder of record hereof, or by duly authorized attorney or legal representative, upon the surrender of this certificate properly endorsed. This certificate is not valid until countersigned and registered by the corporation's transfer agent and registrar. In Witness Whereof the Corporation has caused this certificate to be executed by the facsimile signature of its duly authorized officers and has caused a facsimile of its corporate seal to be hereunto affixed. Dated: /s/ Deborah Jordan /s/ Edwin N. Clift - ------------------------------ ------------------------------------ Treasurer President and Chief Executive Officer MERRILL MERCHANTS BANCSHARES, INC. The Corporation will furnish to any shareholder upon request and without charge a full statement of (i) the designations, preferences, limitations and relative rights of the shares of each class of stock of the Corporation authorized to be issued; and (ii) the variations in the relative rights and preferences between the shares of each series of preferred stock authorized to be issued, so far as the same have been fixed and determined, and the authority of the Board of Directors to fix and determine the relative rights and preferences of other series. The following abbreviations when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - _________Custodian_______ (custodian) (minor) TEN ENT - as tenants by the entireties under Uniform Gifts to Minors Act __________ (state) JT TEN - as joint tenants with right of UNIF TRANS MIN ACT - _________Custodian_______ survivorship and not as tenants (custodian) (minor) in common under Uniform Transfers to Minors Act __________ (state)
Additional abbreviations may also be used though not in the above list. For Value Received, ______________________________ hereby sell, assign and transfer unto ______________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ _________________________________________________________________________ Shares of Common Stock represented by the within certificate, and do hereby irrevocably constitute and appoint ______________________________________________________________________ Attorney to transfer the said shares on the books of the within named Corporation with full power of substitution in the premises. Dated:____________________ ------------------------------ (Signature) ------------------------------ (Signature) NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER. EX-5.1 3 OPINION OF COUNSEL September 18, 1998 Merrill Merchants Bancshares, Inc. 201 Main Street Bangor, ME 04402-0925 Ladies and Gentlemen: We have served as special counsel to Merrill Merchants Bancshares, Inc., a Maine corporation (the "Company"), in connection with the registration on Form S-8 of 645,900 shares of Common Stock, par value $1.00 per share, of the Company ("Common Stock") under the Merrill Merchants Bancshares, Inc.'s 1993 Stock Option Plan (the "Plan"). As such counsel, we have examined the registration statement on Form S-8 to which a copy of this opinion will be attached as an exhibit, the Plan, the corporate records of the Company, including its charter, By-laws, minutes of meetings of its Board of Directors and such other documents as we have deemed necessary as a basis for the opinions herein expressed. Based upon the foregoing, and having regard for such legal considerations as we deem relevant, we are of the opinion that: 1. The Company is a corporation duly incorporated and validly existing under the laws of the State of Maine. 2. The authorized capital stock of the Company consists of 4,000,000 shares of Common Stock, 50,000 shares of Series A Preferred Stock, par value $1.00 per share, and 950,000 shares of undesignated Serial Preferred Stock, par value $.01 per share. 3. The shares of Common Stock proposed to be issued pursuant to the Registration Statement, when sold in accordance with the terms of the Plan and the Agreements, as the case may be, will be legally issued, fully paid and non-assessable. Merrill Merchants Bancshares, Inc. September 18, 1998 Page 2 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Hutchins Wheeler & Dittmar ------------------------------- HUTCHINS, WHEELER & DITTMAR A Professional Corporation EX-23.1 4 CONSENT OF INDEPENDENT ACCOUNTANTS CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (the "Registration Statement") filed by Merrill Merchants Bancshares, Inc. (the "Company") of our report dated January 16, 1998, included in the Company's registration statement filed on Form SB-2 and to all references to our firm included in this Registration Statement. /s/ Berry, Dunn, McNeil & Parker -------------------------------- Berry, Dunn, McNeil & Parker Bangor, Maine September 17, 1998 -----END PRIVACY-ENHANCED MESSAGE-----