As filed with the Securities and Exchange Commission on August 20, 1997
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MERCHANTS CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Mississippi 64-0655603
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
820 South Street
Vicksburg, Mississippi 39180
(601) 636-3752
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)
MERCHANTS CAPITAL CORPORATION AND MERCHANTS BANK INCENTIVE STOCK
OPTION PLAN OF 1997
(Full Title of Plan)
Mr. Howell N. Gage, Jr.
Chairman of the Board
Merchants Bank
Post Office Box 871
Vicksburg, MS 39180
(601) 636-3752
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
Carl J. Chaney, Esq.
Watkins Ludlam & Stennis, P.A.
Post Office Box 427
Jackson, MS 39205-0427
(601) 949-4974
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
In accordance with the terms of the Merchants Capital Corporation and
Merchants Bank Incentive Plan of 1997.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box.
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CALCULATION OF REGISTRATION FEE
Title of each Amount Proposed maximum Proposed maximum Amount of
class of securities to be offering price aggregate registration
to be registered registered(1) per unit(2) offering price(2) fee
Common Stock 25,000 $35.00 $875,000 $265.15
(1) In the event of a stock split, stock dividend or similar transaction
involving Common Stock of the Company, in order to prevent dilution,
the number of shares registered shall be automatically increased to
cover the additional shares in accordance with Rule 416(a) under the
Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the last sales prices per share of
the Common Stock on December 9, 1996.
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PART I.
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is included in a
Prospectus dated July 25, 1997, to be distributed to persons who are granted
awards under the plan. This information is not being filed with or included in
this Form S-8 in accordance with the rules and regulations of the Securities and
Exchange Commission.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by the Merchants Capital
Corporation (the "Company") (file no. 0-10898) with the Securities and Exchange
Commission (the "Commission") are incorporated by reference herein and made a
part hereof pursuant to the Securities Exchange Act of 1934 ("Exchange Act"):
1. The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1996 (File Number 0-10898)(including portions of the Company's
Proxy Statement for the 1997 annual meeting of shareholders stated therein to be
incorporated therein by reference);
2. The Company's Quarterly Report on Form 10-QSB for the period
ended March 31, 1997 (File Number 0-10898).
3. All other documents filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated in this
registration statement by reference and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement.
The Company hereby undertakes to provide without charge to each person
who has received a copy of the prospectus to which this registration statement
relates, upon the written
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or oral request of any such person, a copy of the Company's Annual Report to
Stockholders for its last fiscal year and a copy of any or all the documents
that have been or may be incorporated by reference into this registration
statement, other than exhibits to such documents (unless such exhibits are
incorporated by reference). The Company hereby further undertakes to deliver or
cause to be delivered to all participants in the Plan who do not otherwise
receive such material, copies of all reports, proxy statements and other
communications distributed by the Company to its stockholders generally, no
later than the time such materials are first sent to its stockholders.
Item 4. Description of Securities.
Authorized and Outstanding Capital Stock
The amended and restated Articles of Incorporation (the "Articles") of
the Company authorize the issuance of 1,000,000 shares of Common Stock, par
value $5.00 per share. On February 28, 1997, there were 707,516 shares of Common
Stock issued and outstanding (the "Common Stock").
Voting Rights
The holders of the Company's Common Stock are entitled to one vote upon
each matter submitted to a vote at a meeting of shareholders for each share of
Common Stock held.
Cumulative Voting
Holders of Common Stock have cumulative voting rights in the election
of directors. the Company's Bylaws provide that in the election of directors,
each shareholder entitled to vote has the right to vote in person or by proxy
the number of shares owned by him for as many persons as there are Directors to
be elected and for whose election he has a right to vote, or to cumulate his
votes by giving one candidate as many votes as the number of such directors
multiplied by the number of his shares shall equal, or by distributing such
votes on the same principle among any number of candidates.
Dividend Rights
The holders of Common Stock are entitled to receive such dividends as
may be declared, from time to time, by the Board of Directors out of funds
legally available therefor. Substantially all of the funds available to the
Company for payment of dividends on the Common Stock are derived from dividends
paid by the Company's wholly-owned subsidiary, Merchants Bank. The payment of
the dividends by the Company is subject to the restrictions of Mississippi law
applicable to the declaration of dividends by a business corporation. Under such
provision, no distribution may be made if, after giving it effect (1) the
Company would not be able to pay its debts as they become due in the usual
course of business; or (2) the Company's total assets would be less than the sum
of its total liabilities plus the amount that would be needed, if the
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Company were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of stockholders whose preferential rights
are superior to those receiving the distributions.
Additionally, the Federal Reserve, in its Policy Statement on Cash
Dividends Not Fully Covered by Earnings, has stated that bank holding companies
should not pay dividends except out of current earnings and unless the
prospective rate of earnings retention by the holding company appears consistent
with its capital needs, asset quality and overall financial condition.
Preemptive Rights
The shareholders of the Company shall have no preemptive right to
acquire unissued or treasury shares of the corporation, or obligations of the
Company convertible into such shares.
Fully Paid and Nonassessable
The shares of Common Stock presently outstanding are, and those shares
of Common Stock to be issued in connection with the Plan will be when issued,
fully paid and nonassessable.
Such shares do not have any redemption provisions.
Liquidation Rights
In the event of liquidation, dissolution or winding-up of the Company,
whether voluntary or involuntary, the holders of Common Stock will be entitled
to share ratably in any of the net assets or funds which are available for
distribution to stockholders after the satisfaction of all liabilities or after
adequate provision is made therefor and after payment of any preferences on
liquidation of preferred stock, if any.
Limitation of Liability of Directors
The Articles provide that a director shall not be liable to the Company
or its shareholders for money damages for any action taken, or any failure to
take any action, as a director, except liability for: (i) the amount of
financial benefit received by a director to which he is not entitled; (ii) an
international infliction of harm on the Company or its shareholders; (iii) a
violation of Mississippi Code Annotated 79-4-8.33 (1972), as amended; or (iv) an
intentional violation of criminal law.
Indemnification of Directors, Officers and Employees
The Company's Articles and Bylaws provide for indemnification by the
Company of directors, officers, employees and agents for expenses, judgments,
fines and amounts paid in settlement in connection with a proceeding including
reasonable expenses (attorney's fees) to the fullest extent permitted by the
Mississippi Business Corporation Act in effect from time to time
<PAGE>
and also provide for indemnification against liability to the Company, and/or
liability for any other reason, provided that such person's conduct did not
constitute gross negligence or wilful misconduct as determined by a board of
directors or committee designated by the board, by special legal counsel, by
shareholders or by a court.
The Articles also provide for advances to persons for reasonable
expenses if the person furnishes a written undertaking to repay the advance if
these actions are adjudged to be grossly negligent or willful misconduct and a
determination is made that the facts known would not preclude indemnification.
Insofar as indemnification for liability arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors.
officers or persons controlling the Company pursuant to a foregoing provision,
the Company has been informed that in the opinion of the Securities and Exchange
Commission (the "Commission") such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Transfer Agent
The registered transfer agent and registrar for the Common Stock is
Merchants Bank, Vicksburg, Mississippi.
Item 5. Interests of Named Experts and Counsel.
The legality of the shares offered hereby has been passed upon by the
law firm of Watkins Ludlam & Stennis, P.A., Jackson, Mississippi.
Item 6. Indemnification of Directors and Officers.
Miss. Code Ann. ss. 79-4-8.50 et seq. provides in part that a
corporation may indemnify any director, officer, employee or agent of the
corporation against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with any action, suit or proceeding to which he is or was a party or
is threatened to be made a party (including any action by or in the right of
the corporation), if such action arises out of his acts on behalf of the
corporation and he acted in good faith and that he reasonably believed that
conduct in his official capacity with the corporation was in the corporation's
best interests and that in other cases, his conduct was not opposed to the
corporation's best interests, and, with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was unlawful.
The indemnification provisions of Miss. Code Ann. ss. 79-4-8.50 et
seq. are not exclusive; a corporation may indemnify any person who is adjudged
liable to the corporation in an action by or in the right of the corporation if
such person's acts are found to not be gross negligence or wilful misconduct
(further indemnification is permissible with court approval). A corporation
<PAGE>
may not indemnify any person who is adjudged liable on the basis that a personal
benefit was improperly received by him. A corporation has the power to obtain
and maintain insurance on behalf of any person who is or was acting for the
corporation, regardless of whether the corporation has the legal authority to
indemnify the insured person against such liability.
The Company's Articles of Incorporation and Bylaws provide for
indemnification for directors, officers, employees and agents or former
directors, officers, employees and agents of the Company to the full extent
permitted by Mississippi Business Corporation Act in effect from time to time
and also provides for indemnification for certain actions upon the determination
by certain determining bodies that the person's acts or omissions did not
constitute gross negligence or willful misconduct. Also, a director shall not be
liable to the Company or its shareholders for money damages for any action
taken, or any failure to take action, as a director, except liability for, (i)
the amount of financial benefit received by a director to which he is not
entitled; (ii) an intentional infliction of harm on the Company or its
shareholders; (iii) a violation of Mississippi Code Annotated Section 79-4-8.33
(1972), as amended; or (iv) an intentional violation of criminal law.
The Company maintains an insurance policy covering the liability of its
directors and officers for actions taken in their official capacity.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company 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 and
is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
3.1 Amended and Restated Articles of Incorporation dated March
21, 1992.
3.2 Amended and Restated Bylaws dated July 11, 1992 (filed as
Exhibit 22 to the Company's Form 10-KSB (Commission File
Number 0-10898) for the fiscal year ended December 31, 1994)
5 Opinion of Watkins Ludlam & Stennis, P.A.
23.1 Consent of May and Company
23.2 Consent of Watkins Ludlam & Stennis, P.A. (contained in
Exhibit 5)
<PAGE>
24 Power of Attorney (included on the signature page of this
Registration Statement)
Item 9. Undertakings.
The Company hereby undertakes:
(a) 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)(i) and (a)(ii)
do not apply if the Registration Statement is on Form 3, Form
S-8, and 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 Exchange Act that are incorporated
by reference in the Registration Statement.
(b) 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.
(c) To remove from registration by means of a post- effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers of the Company and subsidiary
companies pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
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 the City of Vicksburg, State of Mississippi, on the 20th day of
August, 1997.
Merchants Capital Corporation
By:/s/ Howell N. Gage, Jr.
-------------------------------------
Howell N. Gage, Jr.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Howell N. Gage, Jr., and each or either
of them, his true and lawful attorney-in-fact and agents, with full power of
substitution and resubstitution, for him and in his 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 attorney-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or 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 be 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 and on the date indicated.
Signature Title Date
/s/ Howell N. Gage, Jr. Chairman and Chief August 20, 1997
- -----------------------
Howell N. Gage, Jr. Executive Officer
<PAGE>
/s/ Joel H. Horton President and Chief August 20, 1997
- ----------------------
Joel H. Horton Operating Officer
/s/ James R. Wilkerson Secretary August 20, 1997
- ----------------------
James R. Wilkerson
/s/ J.E. Blackburn, Jr. Director August 20, 1997
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J.E. Blackburn, Jr.
/s/ Rodney E. Bounds Director August 20, 1997
- ---------------------
Rodney E. Bounds
/s/ Michael J. Chaney Director August 20, 1997
- ---------------------
Michael J. Chaney
/s/Howell N. Gage, Jr. Director August 20, 1997
- ---------------------
Howell N. Gage, Jr.
/s/Dr. W.B. Hopson, Jr. Director August 20, 1997
Dr. W.B. Hopson, Jr.
/s/ Joel H. Horton Director August 20, 1997
- -------------------
Joel H. Horton
/s/ C. Hays Latham Director August 20, 1997
- ------------------
C. Hays Latham
/s/ Martin S. Lewis Director August 20, 1997
- -------------------
Martin S. Lewis
/s/ Robert P. McConnell Director August 20, 1997
- -----------------------
Robert P. McConnell
/s/ Fred G. Peyton Director August 20, 1997
- ---------------------
Fred G. Peyton
<PAGE>
/s/ Robert E. Pickett Director August 20, 1997
- ---------------------
Robert E. Pickett
/s/ Landman Teller, Jr. Director August 20, 1997
- -----------------------
Landman Teller, Jr.
/s/ Ernest G. Thomas Director August 20, 1997
- ----------------------
Ernest G. Thomas
/s/ R.C. Wilkerson, Jr. Director August 20, 1997
- -----------------------
R.C. Wilkerson, Jr.
/s/ James R. Wilkerson, Jr. Director August 20, 1997
- ---------------------------
James R. Wilkerson, Jr.
<PAGE>
EXHIBIT INDEX
Number Item Description
3.1 Amended and Restated Articles of Incorporation dated April
21, 1992.
3.2 Amended and Restated Bylaws dated July 11, 1992 (filed as
Exhibit 22 to the Company's Form 10-KSB (Commission File
Number 0-10898) for the fiscal year ended December 31, 1994).
5 Opinion of counsel as to the legality of the securities being
registered.
23.1 Consent of May and Company.
23.2 Consent of counsel (included in Exhibit 5).
24 Power of Attorney (included on the Signature Page attached
hereto).
<PAGE>
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MERCHANTS CAPITAL CORPORATION
Pursuant to the provisions of Miss. Code Ann. ss.ss. 794-10.01
through 79-4-10.09, the undersigned corporation hereby adopts the
following Amended and Restated Articles of Incorporation:
FIRST: The name of the corporation is MERCHANTS CAPITAL
CORPORATION.
SECOND: The period of its duration is perpetual.
THIRD: The specific purpose or purposes for which the
corporation is organized stated in general terms are:
Primarily, to purchase, own, and hold the stock of other
corporations, and to do every act and thing covered generally by the
denomination "holding corporation" or "holding company", and especially
to direct the operations of other corporations through the ownership of
stock therein; to purchase, take, receive, subscribe for, or otherwise
acquire, own, hold, vote, use, employee, sell, mortgage, lend,
exchange, create security interests in, pledge, or otherwise dispose
of, and otherwise use and deal in and with shares of the capital stock
or other interests in, or obligations, of, other domestic or foreign
corporations, associations, partnerships or individuals, or direct or
indirect obligations of the United States or of any other government,
state, territory, governmental district or municipality or of any
instrumentality thereof; to issue in exchange therefor shares of the
capital stock, bonds, notes, or other obligation of the Corporation and
while the owner thereof to exercise all the rights, powers, and
privileges of ownership including the right to vote on any shares of
stock; to promote, lend money to, and guarantee the bonds, notes,
evidences of indebtedness, contracts, or other obligations of, and
otherwise aid in any manner which shall be lawful, any corporation or
association of which any bonds, stocks, or other securities or
evidences of indebtedness shall be held by or for this Corporation, or
in which, or in the welfare of which, this Corporation shall have any
interest, and to do any acts and things permitted by law and designed
to protect, preserve, improve, or enhance the value of any such bonds,
stocks, or other securities or evidence of indebtedness or the property
of this Corporation.
<PAGE>
To engage in such activities or business as may from time to
time be permitted by State or Federal statutes, regulations or
authorities.
To engage in any other activity or business and to do any and
all things and exercise any and all powers, rights, and privileges
which a corporation may now or hereafter be authorized to do under the
Mississippi Business Corporation Act.
FOURTH: The aggregate number of shares which the Corporation
shall have authority to issue is one million (1,000,000) shares
at the par value of Five Dollars ($5.00) each.
FIFTH: The shareholders of Merchants Capital Corporation shall have no
preemptive right to acquire unissued or treasury shares of the corporation, or
obligations of the corporation convertible into such shares.
SIXTH: The post office address of its initial registered office is
Merchants Capital Corporation, 820 South Street, Post Office 871, Vicksburg,
Mississippi 39180, and the name of its initial registered agent at such address
is Landman Teller, Jr.,
Esq.
SEVENTH: The number of directors of the corporation shall be
not less than five (5) nor more than twenty-five (25).
EIGHTH: A director shall not be liable to the corporation or its
shareholders for money damages for any action taken, or any failure to take any
action, as a director, except liability for, (i) the amount of financial benefit
received by a director to which he is not entitled; (ii) an intentional
infliction of harm on the corporation or its shareholders; (iii) a violation of
Mississippi Code Annotated Section 79-4-8.33 (1972), as amended; or (iv) an
intentional violation of criminal law.
The corporation shall indemnify any person (or the heirs, executors and
administrators of any person) who was or is a party to, or is threatened to be
made a party to, any threatened, pending or completed action, suit or
proceeding, whether or not by or in the right of the corporation, and whether
civil, criminal, administrative, investigative or otherwise, formal or informal
(a "Proceeding"), by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust,
<PAGE>
employee benefit plan or other enterprise, against any obligation to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan) or reasonable expenses (including legal
fees) incurred with respect to the Proceeding: (A) to the fullest extent
permitted by the Mississippi Business Corporation Act in effect from time to
time (the "Act") and (B) despite the fact that such person has failed to meet
the standard of conduct set forth in the Act, or would be disqualified for
indemnification under the Act because he was adjudged liable to the corporation
in connection with a Proceeding by or in the right of the corporation or was
otherwise adjudged liable on the basis that he improperly received a personal
benefit, or for any other reason, if a determination is made by (i) the board of
directors by majority vote of a quorum consisting of directors not at the time
parties to the Proceeding, (ii) if a quorum cannot be obtained under (i), by
majority vote of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting of two or
more directors not at the time parties to the Proceeding, (iii) by special legal
counsel (a) selected by the board of directors or its committee in the manner
prescribed in (i) or (ii) or (b) if a quorum of the board of directors cannot be
obtained under (i) and a committee cannot be designated under (ii), selected by
majority vote of the full board of directors (in which selection directors who
are parties may participate), (iv) by the shareholders (but shares owned by or
voted under the control of directors who are at the time parties to the
Proceeding may not be voted on the determination) or (v) by a court, that the
acts or omissions of the director, officer, employee or agent did not constitute
gross negligence or willful misconduct. The corporation upon request shall pay
or reimburse such person for his reasonable expenses (including legal fees) in
advance of final disposition of the Proceeding as long as (i) such person
furnishes the corporation a written undertaking, executed personally or on his
behalf, to repay the advance if it is ultimately determined by a judgment or
other final adjudication that his acts or omissions did constitute gross
negligence or willful misconduct, which undertaking must be an unlimited general
obligation of such person, and which shall be accepted by the corporation
without reference to final ability to make repayment or to collateral and (ii) a
determination is made by any of the persons described in (i) through (iv) of the
preceding sentence that the facts then known to those making the determination
would not preclude indemnification under this Article EIGHTH. Such request need
not be accompanied by the affirmation otherwise required by the Act.
<PAGE>
Neither the amendment nor repeal of this Article EIGHTH, nor the
adoption or amendment of any other provision of the corporation's Bylaws or
these Amended and Restated Articles of Incorporation inconsistent with this
Article EIGHTH, shall apply to or affect in any respect the applicability of the
preceding two paragraphs with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption.
DATED: April 21, 1992.
MERCHANTS CAPITAL CORPORATION
By: /s/ Howell N. Gage, Jr.
----------------------------
Howell N. Gage, Jr., President
(S E A L)
By: /s/ James R. Wilkerson, Jr.
-------------------------------
James R. Wilkerson, Jr., Secretary
<PAGE>
STATE OF MISSISSIPPI
COUNTY OF WARREN
Personally appeared before me, the undersigned authority in and for the
jurisdiction aforesaid, the within named HOWELL N. GAGE, JR., who being by me
personally sworn, declared that he is the President of Merchants Capital
Corporation, that he executed the foregoing document as President of the
corporation on its behalf, he being so authorized to do; and that the statements
contained therein are true.
GIVEN UNDER MY HAND AND OFFICIAL SEAL on this the 21st day of April,
1992.
/s/ Dorothy R. Bonelli
NOTARY PUBLIC
My Commission Expires:
MY COMMISSION EXPIRES
NOVEMBER 9, 1993
STATE OF MISSISSIPPI
COUNTY OF WARREN
Personally appeared before me, the undersigned authority in and for the
jurisdiction aforesaid, the within named JAMES R. WILKERSON, JR., who being by
me personally sworn, declared that he is the Secretary, of Merchants Capital
Corporation, that he executed the foregoing document as Secretary of the
corporation on its behalf, he being so authorized to do; and that the statements
contained therein are true.
GIVEN UNDER MY HAND AND OFFICIAL SEAL on this the 21st day of April,
1992.
/s/ Dorothy R. Bonelli
NOTARY PUBLIC
My Commission Expires:
MY COMMISSION EXPIRES
NOVEMBER 9, 1993
Exhibit 5
WATKINS LUDLAM & STENNIS, P.A.
P.O. Box 427
Jackson, MS 39205-0427
August 20, 1997
Merchants Capital Corporation
820 South Street
Vicksburg, Mississippi 39180
(601) 636- 3752
Gentlemen:
We have acted as counsel for Merchants Capital Corporation, a
Mississippi corporation (the "Company") in connection with the filing of its
Registration Statement on Form S-8 (the "Registration Statement") on or about
August 14,1997 for the registration of 25,000 shares of Common Stock, par value
$5.00 per share, of the Company under the Securities Act of 1933. The
Registration Statement is being filed in connection with the Company's offering
such shares pursuant to the Merchants Capital Corporation and Merchants Bank
Incentive Stock Option Plan of 1997 (the "Plan").
We have examined the Articles of Incorporation and the amendments
thereto, Bylaws, Corporate Minutes and other corporate records and proceedings
of the Company relating to its organization and present corporate status and
such other corporate records and documents as we have deemed relevant for
purposes of this opinion.
Based on the foregoing, it is our opinion that the shares of Common
Stock, par value $5.00 per share, of the Company proposed to be offered by the
Prospectus, when issued and sold in accordance with the terms and conditions of
the Plan and the Registration Statement shall have become effective and will be
legally issued, fully paid and non assessable shares of Common Stock of the
Company.
The Opinion shall be limited to the laws of the State of Mississippi
and the federal laws of the United States of America.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus comprising Part I of the Registration Statement.
Very truly yours,
/s/ Watkins Ludlam & Stennis, P.A.
WATKINS LUDLAM & STENNIS, P.A.
<PAGE>
Exhibit 23.1
Auditor's Consent
The Board of Directors
Merchants Capital Corporation
We consent to incorporation by reference in the Registration Statement
on Form S-8 of Merchants Capital Corporation of our report dated January 17,
1997, relating to the consolidated statements of condition of Merchants Capital
Corporation and subsidiaries as of December 31, 1996 and 1995 and the related
consolidated statements of earnings, stockholders' equity and changes in
financial position for each of the years in the three-year period ended December
31, 1996, which report is incorporated by reference in the December 31, 1996
annual report on Form 10-KSB and the Registration Statement on Form S-8 (dated
August 14, 1997) of Merchants Capital Corporation.
/s/ May & Company
May and Company
Vicksburg, Mississippi
July 28, 1997
