As filed with the Securities and Exchange Commission on December 28, 1999
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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MERRILL MERCHANTS BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
Maine 01-0471507
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
201 Main Street
Bangor, Maine 04401
(Address of Principal Executive Offices)
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Merrill Merchants Bank 401(k) Profit Sharing Plan
(Full title of the Plan)
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Mr. Edwin N. Clift
President and Chief Executive Officer
Merrill Merchants Bank
201 Main Street
Bangor, Maine 04401
207-942-4800
Copy to:
Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, N.W. Suite 800
Washington, D.C. 20006
(202) 347-8400
(Name and address, telephone number including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered* Registered(1) Price Per Share (2) Aggregate Offering Price (2) Registration Fee
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Common Stock, $1.00 par value 200,000 $9.25 $1,850,000 $489.00
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(1) Based on 200,000 shares of common stock of Merrill Merchants
Bancshares, Inc. (the "Company") reserved for issuance under the
Merrill Merchants Bank 401(k) Plan, ("Plan").
(2) Estimated solely for purpose of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, pursuant to
which a total of 200,000 shares are deemed to be offered at $9.25 per
share, the average of the daily high and low sales prices of common
stock of the Company on The Nasdaq National Market at the close of
trading on December 23, 1999.
* Pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers an indeterminate amount of interests to be
offered pursuant to the employee benefit plan described herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in
this Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with
the Commission by the Registrant are incorporated by reference in this
registration statement:
(1) the description of the Registrant's common stock (the "Common
Stock") contained in the Registrant's Registration Statement
on Form SB-2, and all amendments thereto, dated June 5, filed
with the Commission pursuant to the Securities Exchange Act of
1934, as amended ("Exchange Act");
(2) the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1998, which was filed with the
Commission pursuant to the Exchange Act; and
(3) the Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended March 31, 1999, June 30, 1999 and
September 30, 1999.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date hereof and prior to the date of the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or 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
document which is or is deemed to be 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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 in 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 or 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.
3.1 Restated Articles of Incorporation of Merrill Merchants
Bancshares, Inc.*
3.2 Bylaws of Merrill Merchants Bancshares, Inc.*
4 Specimen Stock Certificate of Merrill Merchants Bancshares, Inc.*
5.1 Opinion of Thacher Proffitt & Wood, counsel for Registrant, as to
the legality of the securities being registered.
23.1 Consent of Thacher Proffitt & Wood (included in Exhibit 5.1
hereof).
23.2 Consent of Berry, Dunn, McNeil & Parker
99.1 Merrill Merchant Bank 401 (k) Profit Sharing Plan
* Incorporated by reference to the Registrant's Registration Statement on Form
SB-2, dated June 5, 1998, and all amendments thereto, filed with the Commission
pursuant to the Exchange Act.
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING. 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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(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)(1)(i) and (a)(1)
(ii) of this section do not apply if the registration statement is on Form S-3
or Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining 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. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
C. INCORPORATED ANNUAL AND QUARTERLY REPORTS. The undersigned
registrant hereby undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3
or Rule 14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
D. FILING OF REGISTRATION STATEMENT ON FORM S-8. Insofar as
indemnification for liabilities arising under the Securities Act 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 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 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Bangor, State of Maine, on this 21st day of
September, 1999.
MERRILL MERCHANTS BANCSHARES, INC.
(Registrant)
By: Edwin N. Clift
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Edwin N. Clift
President, Chief Executive Officer and
Director
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 dates indicated.
SIGNATURE TITLE DATE
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/s/ Edwin N. Clift President, Chief Executive Officer September 21, 1999
------------------------------------------- (Principal Executive Officer) and
Edwin N. Clift Director
/s/ Deborah A. Jordan Treasurer (Principal Financial September 21, 1999
------------------------------------------- Officer and Principal Accounting
Deborah A. Jordan Officer)
/s/ William C. Bullock, Jr. Chairman of the Board September 21, 1999
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William C. Bullock, Jr.
/s/ Joseph H. Cyr Director September 21, 1999
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Joseph H. Cyr
/s/ Perry B. Hansen Director September 21, 1999
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Perry B. Hansen
/s/ Leonard E. Minsky Director September 21, 1999
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Leonard E. Minsky
/s/ Frederick A. Oldenberg Director September 21, 1999
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Frederick A. Oldenberg
/s/ Dennis L. Shubert, M.D. Director September 21, 1999
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Dennis L. Shubert, M.D.
/s/ Susan B. Singer Director September 21, 1999
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Susan B. Singer
/s/ Harold S. Wright Director September 21, 1999
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Harold S. Wright
Pursuant to the requirements of the Securities Act of 1933, the plan
administrator has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Bangor,
State of Maine, on September 21, 1999.
MERRILL MERCHANTS BANK 401(K) PLAN
By: Edwin N. Clift
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Edwin N. Clift
President, Chief Executive Officer, and
Director