Merchants Bancorp (Form: 8-K, Received: 03/28/2019 17:02:11)

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported) March 28, 2019

MERCHANTS BANCORP

(Exact name of registrant as specified in its charter)

Indiana		001-38258		20-5747400
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

11555 N. Meridian Street, Suite 400, Carmel, Indiana 46032

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (317) 569-7420

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see : General Instruction A.2. below):

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company x

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 13(a) of the Exchange Act. o

Item 3.03 Material Modification to Rights of Security Holders.

On March 28, 2019, Merchants Bancorp (“Merchants”) issued an aggregate of shares of 2,000,000 shares of 7.00% Fixed-to-Floating Rate Series A Non-Cumulative Perpetual Preferred Stock, without par value (the “Series A Preferred Stock”), with a liquidation preference of $25.00 per share, which represents $50,000,000 in aggregate liquidation preference.

Under the terms of the Series A Preferred Stock, the ability of Merchants to declare or pay any dividends on, make distributions with respect to, or to redeem, purchase or acquire, or make a liquidation payment on its common stock or any preferred stock ranking on parity with or junior to the Series A Preferred Stock, including the 8% Non-Cumulative, Perpetual Preferred Stock, without par value, liquidation preference $1,000 per share, will be subject to restrictions in the event that Merchants does not declare and pay dividends on the Series A Preferred Stock for the most recently completed dividend period.

The terms of the Series A Preferred Stock are more fully described in the Articles of Amendment relating thereto, filed with the Secretary of the State of Indiana (the “Articles of Amendment”), which are effective March 27, 2019 and establish the voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions relating to the Series A Preferred Stock. A copy of the Articles of Amendment is included as Exhibit 3.2 to our Registration Statement on Form 8-A and is incorporated by reference herein.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the offering of the Series A Preferred Stock, Merchants filed the Articles of Amendment with the Secretary of the State of Indiana, establishing the authorized number of such shares as 3,500,000 and providing for the voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions relating to the Series A Preferred Stock. The Articles of Amendment became effective with the Secretary of State of Indiana on March 27, 2019. The foregoing description is qualified in its entirety by reference to the Articles of Amendment, a copy of which is included as Exhibit 3.2 to our Registration Statement on Form 8-A and is incorporated by reference herein.

Item 8.01 Other Events.

On March 28, 2019, Merchants completed the issuance and sale of 2,000,000 shares of the Series A Preferred Stock, pursuant to an Underwriting Agreement, dated March 21, 2019, between Merchants, Merchants Bank of Indiana and Sandler O’Neill & Partners, L.P. (the “Underwriting Agreement”). Pursuant to the Underwriting Agreement, Merchants has granted the Underwriter a 30-day option to purchase 300,000 additional shares of the Series A Preferred Stock. The sale of the shares of the Series A Preferred Stock was made pursuant to Merchants’ Registration Statement on Form S-3 (File No. 333-228721) (the “Registration Statement”). The legal opinion as to the legality of the shares of the Series A Preferred Stock is included as Exhibit 5.1 to this Current Report on Form 8-K and incorporated by reference herein.

On March 28, 2019, Merchants issued a press release announcing the closing of the offering. The press release has been attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

3.1		Articles of Amendment designating the 7.00% Fixed-to-Floating Rate Series A Non-Cumulative Perpetual Preferred Stock, which is incorporated by reference to Exhibit 3.2 to our Registration Statement on Form 8-A filed on March 28, 2019.

5.1		Opinion of Krieg DeVault LLP regarding legality of the securities being registered.

23.1		Consent of Krieg DeVault LLP (included in Exhibit 5.1).

99.1		Press Release dated March 28, 2019 issued by Merchants Bancorp.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	MERCHANTS BANCORP

	By:	/s/ Terry Oznick
		Terry Oznick
		Senior Vice President and General Counsel

Date: March 28, 2019

EXHIBIT 5.1

March 28, 2019

Merchants Bancorp

11555 North Meridian Street, Suite 400

Carmel, Indiana 46032

Ladies and Gentlemen:

We have acted as counsel to Merchants Bancorp, an Indiana corporation (the “Corporation”), in connection with the preparation and filing of a registration statement on Form S-3 (No. 333-228721) filed by the Corporation with the Securities and Exchange Commission (the “Commission”) on December 7, 2018 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the issuance and sale by the Corporation of up to 2,300,000 shares of 7.00% Fixed-to-Floating Rate Series A Non-Cumulative Perpetual Preferred Stock, without par value, (the “Series A Preferred Stock”) (including up to 300,000 shares issuable upon exercise of the underwriter’s option to purchase additional shares) (the “Shares”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined: (i) the Registration Statement, including the prospectus and prospectus supplement and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the Corporation’s first amended and restated articles of incorporation, including the articles of amendment designating the Series A Preferred Stock and second amended and restated by-laws, each as amended to the date hereof; (iii) corporate proceedings of the Corporation relating to the Registration Statement and the transactions contemplated thereby; (iv) the underwriting agreement between Merchants, Merchants Bank of Indiana and the underwriter named therein incorporated by reference as Exhibit 1.1 to the Registration Statement (the “Underwriting Agreement”); and (v) such other agreements, proceedings, documents and records and such matters of law as we have deemed necessary or appropriate to enable us to render this opinion. As to certain facts material to our opinion, we have relied, to the extent we deem such reliance proper, upon certificates of public officials and officers of the Corporation. In rendering this opinion, we have assumed that (1) the parties to the documents (other than the Corporation) have the necessary power and authority to execute, deliver and perform their obligations under the respective documents, such execution, delivery and performance does not violate such parties’ organizational documents or relevant laws, and such parties have duly authorized, executed and delivered the documents; (2) the genuineness of signatures, and the documents to which such parties are signatories are valid and binding on the applicable parties; (3) the authenticity, accuracy and completeness of all documents, records and certificates submitted to us as originals; (4) the conformity to the originals of all documents, records and certificates submitted to us as copies; (5) the authenticity, accuracy and completeness of the originals of all documents, records and certificates submitted to us as copies.

Based on and subject to the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares will be, upon issuance, duly authorized and when the Shares have been sold and issued upon the terms and conditions set forth in the Registration Statement and the Underwriting Agreement, the Shares will be validly issued, fully paid and non-assessable.

This opinion is limited to the federal securities laws of the United States and the laws of the State of Indiana (excluding federal and state anti-fraud laws) including all applicable Indiana statutory provisions and published and available judicial decisions interpreting these laws, as in effect on the date hereof. We express no opinion as to the effect of the laws of any other jurisdiction.

In rendering the foregoing opinions, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement, the prospectus, any prospectus supplement or other offering material regarding the Corporation or the Shares or their offer and sale.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference made to us in the Registration Statement, in the prospectus and any prospectus supplement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are “experts” within the meaning of Section 11 of the Securities Act, or that we come within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.

	Sincerely,

	/s/ Krieg DeVault LLP

	Krieg DeVault LLP

EXHIBIT 99.1

Media Contact: Rebecca Marsh

Merchants Bancorp

Phone: (317) 805-4356

Email: rmarsh@merchantsbankofindiana.com

Investor Contact: John Macke

Merchants Bancorp

Phone: (317) 536-7421

Email: jmacke@merchantsbankofindiana.com

PRESS RELEASE

Merchants Bancorp Closes Perpetual Preferred Stock Offering

For Release March 28 , 2019

CARMEL, Indiana — (PR Newswire) Merchants Bancorp (“Merchants”) (Nasdaq: MBIN), parent company of Merchants Bank of Indiana, today announced the closing of its previously announced underwritten public offering of 2,000,000 shares of its 7.00% Fixed-to-Floating Rate Series A Non-Cumulative Perpetual Preferred Stock (the “Series A Preferred Stock”), with a liquidation preference of $25.00 per share. As a result, Merchants received proceeds of approximately $48.3 million net of estimated expenses and underwriting discounts and commissions.

In addition, Merchants has granted the underwriter a 30-day option to purchase up to an additional 300,000 shares of its Series A Preferred Stock at the public offering price, less the underwriting discount.

Sandler O’Neill + Partners, L.P. acted as sole underwriter.

A shelf registration statement, including a prospectus, with respect to the offering was previously filed by Merchants with the Securities and Exchange Commission (the “SEC”) and was declared effective by the SEC on December 18, 2018. A prospectus supplement relating to the offering has been filed with the SEC. The offering has been made by means of a prospectus supplement and accompanying prospectus. Copies of the prospectus supplement and the accompanying prospectus relating to these securities may be obtained free of charge by visiting the SEC’s website at www.sec.gov, or may be obtained from Sandler O’Neill + Partners, L.P., 1251 Avenue of the Americas, 6th Floor, New York, New York 10020, Attn: Syndicate Operations, Telephone Number: 1-866-805-4128.

About Merchants Bancorp

Merchants Bancorp is a diversified bank holding company headquartered in Carmel, Indiana operating multiple lines of business, including multi-family housing and healthcare facility financing and servicing, mortgage warehouse financing, retail and correspondent residential mortgage banking,

agricultural lending and traditional community banking. Merchants Bancorp, with $3.9 billion in assets and $3.2 billion in deposits as of December 31, 2018, conducts its business through its direct and indirect subsidiaries, including Merchants Bank of Indiana, Merchants Capital Corp., Farmers-Merchants Bank of Illinois, Merchants Capital Servicing, LLC, OneTrust Funding, Inc. and Merchants Mortgage, a division of Merchants Bank of Indiana. For more information and financial data, please visit Merchants’ Investor Relations page at investors.merchantsbankofindiana.com.