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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
CURRENT REPORT
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: NOVEMBER 4, 1998
INTERNATIONAL MERCANTILE CORPORATION
Missouri 0-7963 43-0970243
- -------- ------ ----------
(State or other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification No.)
P0 BOX 340 OLNEY MD 20832
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Maximum Proposed Maximum
Securities To To Be Offering Price Aggregate
Be Registered Registered Per Shares Offering Price
- -------------------------------------------------------------------
<S> <C> <C> <C>
COMMON SHARES 800,000 $.43 $800,000
as per value
Fee $102(1)
TOTAL $102
</TABLE>
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1)Estimated solely for the purpose of calculating the registration
fee pursuant to Rule 457.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Company with
the Securities and Exchange Commission, are hereby incorporated by reference
into this Prospectus:
a) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 and all the amendments hereto:
b) The Company's Current Reports or Form 8-K filed subsequent to December 31,
1997 and
c) The description of the common stock, one dollar par value per shares (the
"Common Stock") of the Company as contained the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, file No. 0-7693.
All documents filed by the Company with the Commission pursuant to
Section 13 (a), 13 (c) ), 14 and 15 (d) of the Exchange Act subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement 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 hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in a supplement to this
Registration Statement or in a document 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be deemed to be modified or superseded for purposes of this Registration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 supplement to this Registration Statement or in any document that is
subsequently incorporated by reference herein modifies or supersedes such
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.
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Item 4. DESCRIPTION OF SECURITIES.
Not applicable. See Item 3(d) above
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Fillmore & Griffin LC, special securities counsel to the Registrant
for the purpose of this Registration Statement, and whose opinion as to the
legality of the issuance of the Shares hereunder is attached hereto as Exhibit
5. Fillmore and Griffin will be issued shares of Registrant in payment for legal
services rendered, which have a value of over $50,000.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation authorize the Board of
Directors, on behalf of the Company and without shareholder action, to exercise
all of the Company's powers of indemnification to the maximum extent permitted
under the applicable statutes of the state of Missouri, permits the Company to
indemnify its directors, officers, employees, fiduciaries, and agents as
follows;
Missouri Statutes permits a corporation to indemnify such persons for
reasonable expenses in defending against liability incurred in any legal
proceeding if:
(a) The person conducted himself or herself in good faith;
(b) The person reasonable believed:
(1) In the case of conduct in an official capacity with the
corporation, that his or her conduct was in the corporation's best interest; and
(2) In all other cases, that his or her conduct was at
least not opposed to the corporation's best interests; and
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(c) In the case of any criminal proceeding the person had no
reasonable cause to believe that his or her conduct was unlawful.
A Corporation may not indemnify such person under the Missouri Code:
(a) In connection with a proceeding by or in the right of the
corporation in which such person adjudged liable to the corporation; or
(b) In connection with any other proceeding charging that such
person derived any improper benefit, whether or not involving action in an
official capacity, in which proceeding such person was adjudged liable on the
basis that he or she derived an improper personal benefit.
Unless limited by the Articles of Incorporation, and there are not
such limitations with respect to the Company, Missouri Revised statutes require
that the corporation shall indemnify such a person against reasonable expenses
who was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which the person was a party because of his status with the
corporation.
Under Missouri Revised Statutes, the corporation may pay reasonable
fees in advance of final disposition of the proceeding if:
(a) Such person furnished to the corporation a written affirmation
of the such person's good faith belief that he or she has met the Standard of
Conduct described in Missouri Code.
(b) Such person furnishes the corporation a written undertaking,
executed personally or on person's behalf, to repay the advance if it is
ultimately determined that he or she did not meet the Standard of Conduct in
Missouri Code.
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification.
Under the Missouri Code, a corporation may not indemnify such person,
including advanced payments, unless authorized in the specific case after a
determination has been made that indemnification of such person is permissible
in the circumstances because he met the Standard of Conduct under Missouri Code
and such person has made the specific affirmation and undertaking required under
the stature. The required determinations are to be made by a majority vote of a
quorum of the Board of Directors, utilizing only directors who are not parties
to the proceeding. If a quorum cannot be obtained, the determination can be made
by a majority vote of a
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committee of the Board, which consists of at least two directors who are not
parties to the proceeding. If neither a quorum of the Board nor a committee of
the Board can be established, then the determination can be made either by the
Shareholders or by independent legal counsel selected by majority vote of the
Board of Directors.
The corporation is required by the Missouri code to notify the
shareholders in writing of any indemnification of a director with or before
notice of the next shareholders' meeting.
Under the Missouri code such person may apply to any count of
competent jurisdiction for a determination that such person is entitled under
the stature to be indemnified from reasonable expenses.
Under the Missouri code a corporation may also indemnify and advance
expenses to an officer, employee, fiduciary, or agent who is not a director to a
greater extent than the foregoing indemnification provisions, if not
inconsistent with public policy, and if provided for in the corporation's bylaw,
general or specific action of the Board of Directors, or shareholders, or
contract.
Section permits the corporation to purchase and maintain insurance to
pay for any indemnification of reasonable expenses as discussed herein.
The indemnification discussed herein shall not be deemed exclusive of
any other rights to which those indemnified may be entitled under the Articles
of Incorporation, any Bylaw, agreement, vote of shareholders, or disinterested
directors, or otherwise, and any procedure provided for by any of the foregoing,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of
heirs, executors, and administrators of such a person.
Insofar as indemnification for liabilities 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 expense 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
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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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS
[Asterisk (*) indicates exhibits incorporated by
reference herein.]
Exhibits
Number Description
3.1 * All of the Registrant's corporate filings and those
incorporated by reference in the Company's Form
10-K year ended December 31, 1997 filed with the
Commission, file no. 0-7693.
3.2 * International Mercantile Corporation Group
Compensation Plan, dated November 4, 1998.
5. Opinion of Counsel, Fillmore & Griffin LC.
24.1 Consent of Counsel
Item 9. UNDERTAKINGS
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1. The Registrant 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 formation 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;
(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 the time shall be deemed to be the initial
bonafide 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.
2. The 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
Exchange Act (and, where applicable, each filing of any employee benefits
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 herein, and the
offering of such securities at that time shall be deemed to be in the initial
bonafide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing 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 Olney, Maryland on the 4th day of November, 1998.
INTERNATIONAL MERCANTILE
CORPORATION
Dated: November 4, 1998 By:
-------------- ------------------------
Frederic Richardson
Chairman of the Board
Chief Executive Officer
In accordance with the Exchange Act, this report has been signed below
by the following persons on behalf of this Registrant and in the capacities and
on the dates indicated.
CHIEF ACCOUNTING OFFICER
Dated: November 4, 1998 By:
--------------- ---------------------
MAJORITY OF BOARD OF DIRECTORS:
Dated: November 4, 1998 By:
--------------- ---------------------
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-------------- -----------------
Frederic Richardson
Dated: November 4 1998
-------------- -----------------
Walt DeRhonde
Dated: November 4 1998
_______________ __________________
Scott Hess
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EXHIBIT INDEX
[Asterisk (*) indicates exhibits incorporated by reference herein]
Exhibit
Number Description
EXHIBITS
[Asterisk (*) indicates exhibits incorporated by reference
herein.]
Exhibits
Number Description
3.1 * All of the Registrant's corporate filings and those
incorporated by reference in the Company's Form 10-K
year ended December 31, 1997 filed with the
Commission, file no. 0-7693.
3.2 International Mercantile Corporation Group Compensation
Plan, dated November 4, 1997.
5. Opinion of Counsel, Fillmore & Griffin LC.
24. 1 Consent of Counsel
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EXHIBIT 3.2
INTERNATIONAL MERCANTILE CORPORATION GROUP COMPENSATION PLAN
THIS AGREEMENT is made this 4th day of November, 1998.
Section 1. Purpose
The Compensation Plan (hereinafter referred to as the "Plan") is
intended to promote the best interest of International Mercantile Corporation,
Inc. a Missouri corporation (the "Company") and its stockholders by providing a
means of non-cash remuneration to consultants, and services providers who
contribute to the operating progress and earning power of the Company.
Section 2. Definitions
The following definitions shall be applicable to the terms used in the
Plan:
2.1 "Code" means the Internal Revenue Code of 1986, as presently in
effect or as hereunder amended.
2.2 "Committee" means a committee of two (2) Directors (none of whom is
an Eligible Participant) appointed by the Board of Directors to implement,
interpret and administer the Plan, subject at all times to the approval of the
entire Board of Directors unless and to the extent that the Committee is
composed of all of the persons then comprising the Board of Directors of the
Company. The Board of Directors, in its sole discretion, may at any time remove
any member of the Committee and appoint another Director (who may or may not be
an Eligible Participant to fill any vacancy on the Committee or may act itself
as the Committee:
2.3 "Company" means International Mercantile Corporation, a Mo.
corporation.
2.4 "Eligible Participant" or "Participant" means any consultant or
service provider of the Company who is determined (in accordance with the
provisions of Section 4 hereof, provided however that no provider was or is an
employee of the company), to be
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eligible to receive stock hereunder.
2.5 "Plan" means this International Mercantile Corporation Compensation
Plan.
2.6 "Registered Stock" means shares of common stock, no par value, of
the Company which are, upon issuance, freely tradable by virtue of having been
registered with the Securities and Exchange Commission under cover of Form 5-8,
or another appropriate registration statement, and which shares have been issued
subject to the "blue sky" provisions of any appropriate state jurisdiction.
Special resale restrictions may, however, apply to officers, directors, control
shareholders and affiliates of the Company and such individuals or entities will
be required to obtain an opinion of counsel as regards their ability to resell
shares received pursuant to this Plan.
2.7 "Restricted Stock" means shares of common stock, no par value, of
the Company issuable directly under the Plan which are, upon issuance, subject
to the restrictions set forth in Section 10 hereof. Wherever appropriate, words
used in the Plan in the singular may mean that plural, the plural may mean the
singular, and the masculine may mean the feminine or neuter.
Section 3. Adoption and Administration of the Plan
Upon the adoption by the Company's Board of Directors, the Plan shall
become effective immediately. In the absence of contrary action by the Board of
Directors, and expect for action taken by the Committee pursuant to Section 4 in
connection with the determination of Eligible Participants, any action taken by
the Committee or by the board of Directors with respect to the implementation,
interpretation or administration of the Plan shall be final, conclusive and
binding.
Section 4. Eligibility and Awards
The Committee shall determine, as soon as practicable after the
effective date of the Plan, and at any time and from time to time thereafter:
(i) the Eligible Participants; (ii) the number of shares of Stock
issuable directly or to be granted pursuant to the Plan which an
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Eligible Participant may exercise; (iii) the price at which each grant may be
exercised, or the price per share in cash, or cancellation of fees or other
payment for which the Company is liable if a direct issue of stock; and (iv) the
terms on which each grant may be granted. Such determination, as may from time
to time be amended or altered at the sole discretion of the Committee, shall be
set forth on Exhibit A to this Plan, attached hereto. Notwithstanding the
provisions of Section 3 hereof, no such determination by the Committee shall be
final conclusive and binding upon the Company unless and until the Board of
Directors has approved the same; provided, however, that if the Committee is
composed of all the person then comprising the Board of Directors of the
Company, such approval by the Board of Directors shall not be necessary.
Section 5. Issuance of Stock
Subject to the terms and provisions of this Plan, the terms and
conditions under which the issuance of Registered Stock or Restricted Stock may
be granted to an Eligible Participant shall be set forth in a written agreement
(i.e., a Consulting Agreement, Services Agreement, Fee Agreement, or Employment
Agreement) and the grant of such Registered Stock or Restricted Stock hereunder
shall be made a part hereof and containing such modifications thereto and such
other provisions as the Committee, in its sole discretion, may determine.
Notwithstanding the foregoing provisions of this Section 5, each Grant of any
Registered Stock or Restricted Stock shall incorporate the provisions of this
Plan by reference.
Section 6. Total Number of Shares of Stock
The total number of shares of Stock reserved for issuance by the
Company directly under this Plan shall not, initially be more than Eight Hundred
Thousand (800,000). The total number of shares of Stock reserved for such
issuance may be increased only by a resolution adopted by the Board of Directors
and an amendment of the Plan. Such Stock may be authorized and unissued or
reacquired common stock of the Company.
Section 7. Purchase of Shares of Stock.
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7.1 As soon as practicable after the determination by the Committee
and approval by the Board of Directors (if necessary, pursuant to SecItion 4
hereof) of the Eligible Participants and the number of shares an Eligible
Participant and be issued directly, the Committee shall give notice (written or
oral) thereof to each Eligible participant, which notice be accompanied by the
issuance, to be acknowledged by such Eligible Participant.
Upon receipt of said acknowledge by the Company, the Company will forward
instructions to the Company's transfer agent to issue Stock to such Eligible
Participant.
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7.2 The negotiated cost basis of stock issued directly to purchase
shares pursuant to paragraph 71. Shall be as determined by the Committee, it
being understood that the price so determined by the Committee may vary from one
Eligible Participant to another. In computing the negotiated direct issue price
of a share of Stock, the Committee shall take into consideration, among other
factors, the restrictions set forth in Section 10 hereof.
Section 8. Payment upon Direct Issuance
The Committee shall determine the terms of the direct issue price for
payment by each Participant for his shares of Stock granted thereunder. Such
terms shall be set forth or referred to in the Board Resolution authorizing
issuance. The terms so set by the Committee may vary from one Participant to
another.
Section 9. Delivery of Shares of Registered Stock Upon Exercise
The Company shall deliver to or on behalf of each Participant such
number of shares of Registered Stock as such Participant elects to purchases
upon direct issuance. Such shares, which shall be fully paid and non-assessable
upon the issuance thereof, shall be represented by a certificates registered in
the name of the Participant and stamped with an appropriate legend referring to
the restriction thereon, if such stock is to be restricted. Subject to the terms
and provisions of the Missouri Business Corporation Act, an Eligible Participant
shall have all the rights of a stockholder with respect to such shares,
including the right to vote the shares and to receive all dividend or other
distributions paid or made with respect thereto, provided that such shares shall
be subject to the restrictions hereinafter set forth. In the event of a merger
or consolidation to which the Company is a party, or of any other acquisition of
a majority of the issued and outstanding shares of common stock of an acquiring
corporation for common stock of the Company, or of any transfer of all or
substantially all of the assets of the Company in exchange for stock of any
acquiring corporation, a determination as to whether the stock of the acquiring
corporation so received shall be subject to the restrictions set forth in
Section 10 shall be made solely by the acquiring corporation.
Section 10. Restrictions On Shares Of Stock Issued Upon Direct
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Issuance
10.1 The shares of Stock issued directly shall not be sold, exchanged,
assigned, transferred or permitted to be transferred, whether voluntarily,
involuntarily or by operation of law, delivered, encumbered, discounted,
pledged, hypothecated or otherwise disposed of unless the shares underlying the
direct issuance have been registered with the Securities and Exchange Commission
("SEC") pursuant to a registration statement on Form S-8, or such other forms as
may be appropriate, or an Opinion of Counsel, satisfactory to the Company, is
received, which opinion established that an exemption from the registration
provisions of the Securities Act of 1933, as amended the "33 Act") is available.
10.2 The direct issuance of stock hereunder, to any Eligible
Participant may be subject in the sole discretion of the Committee, to other and
further restrictions on transferability, which may provide, among other
restrictions, that such shares may not be sold, exchanged, assigned, transferred
or permitted to be transferred, whether voluntarily, involuntarily or by
operation of law, delivered, encumbered, discount, pledged, hypothecated or
otherwise disposed of for a period of six (6) months from effective date of such
other period as may be determined by the Committee.
Section 11. Plan Binding Upon Assigns of Transferees
In the event that, at any time or from time to time, any shares to
Stock are sold, exchanged, assigned or transferred to any party (other than the
Company) pursuant to the provisions of Section 10 hereof, such party shall take
such shares to Stock pursuant to all provisions and conditions of this Plan,
and, as a condition precedent to the transfer of such shares of Stock, such
party shall agree (for and on behalf of himself or itself, his or its legal
representatives and his or its transferees and assigns) in writing to be bound
by all provisions of this Plan.
Section 12. Costs and Expenses
All costs and expenses with respect to the adoption, implementation,
interpretations and administration of the Plan shall be borne by the Company.
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Section 13. No Prior Right of Award
Nothing in the Plan shall be deemed to give any officer or employee of
the Company, or his legal representatives or assigns, or any other person or
entity claiming under or through him, any contract or other right to participate
in the benefits of this Plan. Nothing in the Plan shall be construed as
constituting a commitment, guarantee, agreement or understanding of any kind or
nature that the Company shall continue to employ any individual (whether or not
a Participant). The Plan shall not affect in any way the right of the Company to
terminate the employment or contract of any individual (whether or not a
participant) at any time.
Section 14. Changes in Capital Structure Of The Company
Unless otherwise agreed to by the Company in writing or unless
otherwise required by law, the shares of Stock issued directly under the Plan
and which are held by an Eligible Participant, or is successor in interest,
shall be adjusted in any manner for (i) a subdivision or combination of any of
the shares of capital stock of the Company; (ii) a dividend payable in shares of
capital stock of the Company; (iii) a reclassification of any shares of capital
stock of the Company; or (iv) any other change in the capital structure of the
Company.
Section 15. Amendment or Termination of The Plan
The Plan may be amended or terminated whole or in part by the Board of
Directors of the Company (in its sole discretion), but no such action shall
adversely affect or alter any right or obligation with respect to any reward
therefore made.
Section 16. Burden and Benefit
The terms and provisions of this Plan shall be binding upon, and shall
inure to the benefit of, each Participant, his executives
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or administrations, heirs, and personal and legal representatives.
International Mercantile Corporation
By:
--------------------------
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EXHIBIT 5
FILLMORE & GRIFFIN, L.C.
ATTORNEYS AT LAW
November 4, 1998
The Board of Directors of
International Mercantile Corporation ("IMC")
P0 BOX 340
Olney Md 20832
RE: Legality of IMC Shares Issued
Pursuant to IMC Group Compensation Plan (the "Plan")
Gentlemen:
We have reviewed the Plan and the Articles of Incorporation and Bylaws of
IMC and we are of the opinion that all shares to be issued pursuant to the Plan
will be, when issued, legally issued, fully paid and non-assessable shares of
the common stock of IMC.
We are of the further opinion that the Plan is not subject to Employee
Retirement Income and Security Act ("ERISA").
Sincerely,
FILLMORE & GRIFFIN, L.C.
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EXHIBIT 24.1
670 PLAZA WEST BUILDING, 4600 MADISON, KANSAS CITY, MISSOURI 64112
(816) 531-6200 FACSIMILE: (816) 531-6646
CONSENT OF COUNSEL
We consent to the reference to our firm in this Registration Statement on
Form S-8 filed by International Mercantile Corporation.
FILLMORE & GRIFFIN, L.C.
/s/ FILLMORE & GRIFFIN, L.C.
Kansas City, Missouri
November 4, 1998
