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.
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(Exact name of issuer as specified in its charter)
Maine 01-0471507
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(State of Incorporation) (IRS Employer Identification Number)
201 Maine Street, Bangor, Maine 04401
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(Address of Principal Executive Offices)
(207) 942-4800
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(Registrant's telephone number, including area code)
MERRILL MERCHANTS BANCSHARES, INC. 1993 STOCK OPTION PLAN
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(Full title of the Plan)
Edwin N. Clift
President
Merrill Merchants Bancshares, Inc.
201 Maine Street
Bangor, Maine 04401
(207) 942-4800
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(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
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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
- ---------------- ------------- ------ -------------- ----------------
<S> <C> <C> <C> <C>
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
</TABLE>
- ----------------------------------
(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
<PAGE>
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
<PAGE>
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
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
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
</TABLE>
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
<PAGE>
(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
<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 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.
<TABLE>
<CAPTION>
NAME CAPACITY DATE
-------- ----
<S> <C> <C>
/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
</TABLE>
7
<PAGE>
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
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
<PAGE>
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:
<TABLE>
<CAPTION>
<S> <C>
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)
</TABLE>
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:____________________
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(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.
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.
<PAGE>
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
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
