Form S-8 - Securities to be offered to employees in employee benefit plans

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As filed with the Securities and Exchange Commission on December 11, 2024

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S‑8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

Farmers & Merchant Bancorp

(Exact name of registrant as specified in its charter)

 

Delaware		94-3327828
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

111 West Pine Street, Lodi, California		95240
(Address of Principal Executive Offices)		(Zip Code)

Farmers & Merchants Bancorp 2025 Restricted Stock Retirement Plan

(Full title of the plan)

Bart R. Olson

Executive Vice President, Chief Financial Officer and

Corporate Secretary

Farmers & Merchants Bancorp

111 West Pine Street

Lodi, California 95240

(Name and address of agent for service)

[phone]

(Telephone number, including area code, of agent for service)

 

Copy to:

Rodney R. Peck

Patricia F. Young

Pillsbury Winthrop Shaw Pittman LLP

Four Embarcadero Center, 22^nd Floor

San Francisco, CA 94111

[phone]

 

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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ☐	Accelerated filer ☒	Non-accelerated filer ☐
	Smaller reporting company ☐	Emerging Growth Company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

The Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act.

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FARMERS & MERCHANTS BANCORP

REGISTRATION STATEMENT ON FORM S-8

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this registration statement on Form S-8 (this “Registration Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933 (the “Securities Act”) and the introductory note to Part I of Form S-8.

The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3.

Incorporation of Documents by Reference.

The following documents filed with the Commission are hereby incorporated by reference in this Registration Statement of the Registrant:

(a)

Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, including the information contained in the Company’s Proxy Statement filed with the Commission on April 3, 2024, for its Annual Meeting of Shareholders held on May 13, 2024, that has been incorporated by reference into the Form 10-K;

(b)

Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024, June 30, 2024, and September 30, 2024, filed with the Commission on May 9, 2024, August 9, 2024, and November 8, 2024, respectively;

(c)

Registrant’s Current Reports on Form 8-K filed with the Commission on January 25, 2024, April 5, 2024, May 14, 2024, May 15, 2024, September 9, 2024, September 16, 2024, October 8, 2024, November 13, 2024, December 2, 2024, and December 3, 2024, but only to the extent that the items therein are specifically stated to be “filed” rather than “furnished” for the purposes of Section 18 of the Exchange Act; and

(d)

The description of Registrant’s common stock set forth in Exhibits 4.1, 4.2 and 4.3 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, including any amendment or report filed for the purpose of updating such description.

In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (other than the portions of these documents not deemed to be filed) on or after 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 pursuant to this Registration Statement 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 part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein modifies or supersedes such statement. Any such 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.

ITEM 5.

Interests of Named Experts and Counsel.

Not applicable.

ITEM 6.

Indemnification of Directors and Officers.

Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's Board of Directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. Article XVI of the Registrant’s Amended and Restated Certificate of Incorporation contains a provision eliminating the personal liability of the Registrant’s directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the Delaware General Corporation Law. Article XI of the Registrant's Amended Bylaws provides for the indemnification of the Registrant’s directors and officers to the fullest extent permitted by the Delaware General Corporation Law, and provides that the Registrant, by action of its Board of Directors, may provide indemnification to employees and agents with the same scope and effect as the foregoing indemnification of directors and officers.  The Registrant has entered into agreements with certain officers and key employees implementing such indemnification.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of our company pursuant to the Delaware General Corporation Law, our Amended and Restated Certificate of Incorporation, our Amended Bylaws or any of our indemnification agreements with our officers, we have been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

We maintain a Directors’ and Officers’ Liability Insurance Policy designed to reimburse us for any covered payments made by us pursuant to the foregoing indemnification.

ITEM 7.

Exemption From Registration Claimed.

Not applicable.

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ITEM 8.

Exhibits.

Exhibit No.	Description
5.1*	Opinion of Pillsbury Winthrop Shaw Pittman LLP.
23.1*	Consent of Eide Bailly LLP, independent registered public accounting firm.
23.2*	Consent of Moss Adams LLP, independent registered public accounting firm.
23.3*	Consent of Pillsbury Winthrop Shaw Pittman LLP (included in Exhibit 5.1).
24.1*	Power of Attorney (included in the signature page to this Registration Statement).
99.1	Farmers & Merchants Bancorp 2025 Restricted Stock Retirement Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on December 2, 2024).
107*	Filing Fee Table.

* Filed herewith.

ITEM 9.

Undertakings.

(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;

(ii)   to reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 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 this Registration Statement or any material change to such information in this Registration Statement;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

(2)   That, for the purpose of determining any liability under the Securities Act, 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.

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(b)   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 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 Securities Exchange Act of 1934) that is incorporated by reference in this 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)   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.

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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 Lodi, State of California, on the 11^th day of December, 2024.

	FARMERS & MERCHANTS BANCORP
	By:	/s/ Bart. R. Olson
		Bart R. Olson
		Executive Vice President and Chief Financial Officer and Corporate Secretary

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kent A. Steinwert and Bart R. Olson, jointly and severally, as his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or any of them, or his or her substitute or substitutes, may lawfully do or cause to be done by 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 dates indicated:

Name		Title		Date
/s/ Kent A. Steinwert		Director, Chairman, President and Chief Executive Officer (Principal Executive Officer)		December 11, 2024
Kent A. Steinwert
/s/ Bart R. Olson		Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)		December 11, 2024
Bart R. Olson
/s/ Edward Corum, Jr.		Director		December 11, 2024
Edward Corum, Jr.
/s/ Stephenson K. Green		Director		December 11, 2024
Stephenson K. Green
/s/ Gary Long		Director		December 11, 2024
Gary Long
/s/ Kevin Sanguinetti		Director		December 11, 2024
Kevin Sanguinetti
/s/ Calvin Seuss		Director		December 11, 2024
Calvin Seuss
/s/ Craig James		Director		December 11, 2024
Craig James

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Exhibit 5.1

Pillsbury Winthrop Shaw Pittman LLP

Four Embarcadero Center, 22nd Floor  |  San Francisco, CA 94111-5998  |  tel [phone]  |  fax [phone]

 

MAILING ADDRESS:  P.O. Box 2824, San Francisco, CA 94126-2824

December 11, 2024

Farmers & Merchants Bancorp

111 West Pine Street

Lodi, California 95240

Re:          Registration Statement on Form S-8

Ladies and Gentlemen:

 

We are acting as counsel for Farmers & Merchants Bancorp, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S‑8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”) relating to the registration of 80,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share, issuable pursuant to the Company’s 2025 Restricted Stock Retirement Plan (the “Plan”).

 

We have reviewed the Registration Statement, the Plan and such other documents, records, certificates and other materials, and have reviewed and are familiar with such corporate proceedings and satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for our opinions set forth in this letter. In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons.

 

On the basis of the assumptions and subject to the qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and, when issued and sold in accordance with the Plan, will be validly issued, fully paid and nonassessable.

 

Our opinions set forth in this letter are limited to the General Corporation Law of the State of Delaware, as in effect on the date hereof.

 

We hereby consent to the filing of this letter as Exhibit 5.1 to the Registration Statement.  In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

Very truly yours,

 

/s/ Pillsbury Winthrop Shaw Pittman LLP

 

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Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 14, 2024, which appears in Farmers & Merchants Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2023.

/s/ Eide Bailly LLP
Eide Bailly LLP
Walnut Creek, California
December 10, 2024

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Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Farmers & Merchants Bancorp, of our report dated March 16, 2022, relating to the consolidated financial statements of Farmers & Merchants Bancorp (the “Company”), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2021, filed with the Securities and Exchange Commission.

/s/ Moss Adams LLP
Sacramento, California
December 10, 2024

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Exhibit 107

Calculation of Filing Fee Tables

S-8

(Form Type)

Farmers & Merchants Bancorp

(Exact Name of Registrant as Specified in its Charter)

Table 1:  Newly Registered Securities

Security Type		Security Class Title	Fee Calculation Rule		Amount Registered(1)				Proposed Maximum Offering Price Per Unit(2)				Maximum Aggregate Offering Price				Fee Rate				Amount of Registration Fee
Fees to be Paid	Equity	Common Stock, par value $0.01 per share	457(c) and 457(h)			80,000	(3)		$	1,062.50			$	85,000,000				0.00015310			$	13,013.50
	Total Offering Amounts												$	85,000,000							$	13,013.50
	Total Fee Offsets																					—
	Net Fee Due																				$	13,013.50

(1)

Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of Registrant’s Common Stock, par value $0.01 per share (“Common Stock”) that become issuable pursuant to the Farmers & Merchants Bancorp 2025 Restricted Stock Retirement Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of Common Stock.

 

(2)

Calculated pursuant to Rule 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee, based on the average of the high and low prices of the Common Stock as reported on the OTCQX on December 9, 2024.

(3)

Represents shares of Common Stock issued or issuable pursuant to the vesting of restricted stock awards under the Farmers & Merchants Bancorp 2025 Restricted Stock Retirement Plan.

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