Registration No. 333-______
As filed with the Securities and Exchange Commission on May 17, 2007
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
First Federal of Northern Michigan Bancorp, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Maryland 32-0135202
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
100 South Second Avenue
Alpena, Michigan 49707
(Address of Principal Executive Offices)
Martin A. Thomson
Chief Executive Officer
100 South Second Avenue
Alpena, Michigan 49707
(Name and Address of Agent for Service)
First Federal of Northern Michigan Bancorp, Inc.
2006 Stock-Based Incentive Plan(Full Title of the Plan)
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Copies to:
Martin A. Thomson Robert B. Pomerenk, Esquire
Chief Executive Officer Steven Lanter, Esquire
First Federal of Northern Michigan Luse Gorman Pomerenk & Schick, P.C.
Bancorp, Inc. 5335 Wisconsin Ave., N.W., Suite 400
100 South Second Avenue Washington, D.C. 20015
Alpena, Michigan 49707 (202) 274-2000
(989) 356-9041
(Name, Address and Telephone
Number of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share Offering Price Fee
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Common stock, par value
$0.01 per share 47,700 (2) $9.10 (6) $427,700 $14
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Common stock, par value
$0.01 per share 87,680 (3) $9.65 (5) $1,673,175 $52
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Common stock, par value
$0.01 per share 107,360 (4) $9.10 (6) $976,976 $30
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TOTALS 242,740 $3,077,851 $96
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(1) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance pursuant to
the First Federal of Northern Michigan Bancorp, Inc. 2006 Stock-Based
Incentive Plan (the "Stock Incentive Plan") as a result of a stock split,
stock dividend or similar adjustment of the outstanding common stock of
First Federal of Northern Michigan Bancorp, Inc. (the "Company") pursuant
to 17 C.F.R. Section 230.416(a).
(2) Represents the number of shares of common stock awarded as restricted stock
but not vested under the Stock Benefit Plan. (3) Represents the number of
shares of common stock currently reserved for issuance for options granted
pursuant to the Stock
Benefit Plan
(4) Represents the number of shares of common stock reserved for issuance under
the Stock Benefit Plan for any future grants of restricted stock or stock
options.
(5) Determined pursuant to 17 C.F.R. Section 230.457(h)(1) and 17 C.F.R.
Section 230.457(c).
(6) Determined pursuant to 17 C.F.R. Section 230.457(h)(1).
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This Registration Statement shall become effective upon filing in
accordance with Section 8(a) of the Securities Act of 1933 and 17 C.F.R. ss.
230.462.
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
The documents containing the information specified in Parts I and II of
Form S-8 have been or will be sent or given to participants in the Stock
Incentive Plan as specified by Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II.
Item 3. Incorporation of Documents by Reference
The following documents previously or concurrently filed with the
Commission are hereby incorporated by reference in this Registration Statement:
a) The Annual Report on Form 10-KSB of the Company for the year ended
December 31, 2006 (Commission File No. 000-31957), filed with the Commission on
April 2, 2007 pursuant to Section 13(a) of the Securities and Exchange Act of
1934, as amended (the "Exchange Act");
b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the year covered by the Annual Report
on Form 10-KSB referred to in (a) above; and
c) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the SEC on March 22, 2005
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and to be a part thereof from the date of the
filing of such documents. Any statement contained in the documents incorporated,
or deemed to be incorporated, by reference herein or therein shall be deemed to
be modified or superseded for purposes of this Registration Statement and the
prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the prospectus.
All information appearing in this Registration Statement and the
prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Articles 12 and 13 of the Articles of Incorporation of First Federal of Northern
Michigan Bancorp, Inc. (the "Corporation"), set forth circumstances under which
directors, officers, employees and agents of the Corporation may be insured or
indemnified against liability which they incur in their capacities as such:
ARTICLE 12. Indemnification, etc. of Directors and Officers.
A. Indemnification. The Corporation shall indemnify (1) its current and
former directors and officers, whether serving the Corporation or at its request
any other entity, to the fullest extent required or permitted by the MGCL now or
hereafter in force, including the advancement of expenses under the procedures
and to the fullest extent permitted by law, and (2) other employees and agents
to such extent as shall be authorized by the Board of Directors and permitted by
law; provided, however, that, except as provided in Section B hereof with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation.
B. Procedure. If a claim under Section A of this Article 12 is not paid
in full by the Corporation within 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall also be entitled
to be reimbursed the expense of prosecuting or defending such suit. It shall be
a defense to any action for advancement of expenses that the Corporation has not
received both (i) an undertaking as required by law to repay such advances in
the event it shall ultimately be determined that the standard of conduct has not
been met and (ii) a written affirmation by the indemnitee of his good faith
belief that the standard of conduct necessary for indemnification by the
Corporation has been met. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
the applicable standard for indemnification set forth in the MGCL. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the MGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article 12 or otherwise shall be on the Corporation.
C. Non-Exclusivity. The rights to indemnification and to the
advancement of expenses conferred in this Article 12 shall not be exclusive of
any other right which any Person may have or hereafter acquire under any
statute, these Articles, the Corporation's Bylaws, any agreement, any vote of
stockholders or the Board of Directors, or otherwise.
D. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such Person against such expense,
liability or loss under the MGCL.
E. Miscellaneous. The Corporation shall not be liable for any payment
under this Article 12 in connection with a claim made by any indemnitee to the
extent such indemnitee has otherwise actually received payment under any
insurance policy, agreement, or otherwise, of the amounts otherwise
indemnifiable hereunder. The rights to indemnification and to the advancement of
expenses conferred in Sections A and B of this Article 12 shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the indemnitee's heirs,
executors and administrators.
Any repeal or modification of this Article 12 shall not in any way
diminish any rights to indemnification or advancement of expenses of such
director or officer or the obligations of the Corporation arising hereunder with
respect to events occurring, or claims made, while this Article 12 is in force.
ARTICLE 13. Limitation of Liability. An officer or director of the
Corporation, as such, shall not be liable to the Corporation or its stockholders
for money damages, except (A) to the extent that it is proved that the Person
actually received an improper benefit or profit in money, property or services
for the amount of the benefit or profit in money, property or services actually
received; (B) to the extent that a judgment or other final adjudication adverse
to the Person is entered in a proceeding based on a finding in the proceeding
that the Person's action, or failure to act, was the result of active and
deliberate dishonesty and was material to the cause of action adjudicated in the
proceeding; or (C) to the extent otherwise provided by the MGCL. If the MGCL is
amended to further eliminate or limit the Personal liability of officers and
directors, then the liability of officers and directors of the Corporation shall
be eliminated or limited to the fullest extent permitted by the MGCL, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. List of Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
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4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
10 First Federal of Northern Michigan Bancorp, Inc.
2006 Stock-Based Incentive Plan **
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Plante & Moran, PLLC Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
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* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form SB-2 (Commission File No. 333-121178), originally filed by the
Company under the Securities Act of 1933, with the Commission on December
10, 2004, and all amendments or reports filed for the purpose of updating
such description.
** Incorporated by reference to Appendix A to the proxy statement for the
Company's 2006 Annual Meeting of Shareholders (Commission File No.
000-31957), filed by the Company under the Securities Exchange Act of
1934, on April 10, 2006.
Item 9. Undertakings
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 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;
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 Plan;
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to Section
13(a) or 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; and
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Company 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Alpena, State of
Michigan, on this 16th day of May, 2007.
FIRST FEDERAL OF NORTHERN MICHIGAN
BANCORP, INC.
By: /s/ Martin A. Thomson
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Martin A. Thomson, Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of First Federal of Northern
Michigan Bancorp, Inc. (the "Company") hereby severally constitute and appoint
Martin A. Thomson, as our true and lawful attorney and agent, to do any and all
things in our names in the capacities indicated below which said Martin A.
Thomson may deem necessary or advisable to enable the Company to comply with the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the registration of
shares of common stock to be granted and shares of common stock to be issued
upon the exercise of stock options to be granted under the First Federal of
Northern Michigan Bancorp, Inc. 2006 Stock-Based Incentive Plan, including
specifically, but not limited to, power and authority to sign for us in our
names in the capacities indicated below the registration statement and any and
all amendments (including post-effective amendments) thereto; and we hereby
approve, ratify and confirm all that said Martin A. Thomson shall do or cause to
be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the date indicated.
Signatures Title Date
/s/ Martin A. Thomson Chief Executive Officer May 16, 2007
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Martin A. Thomson (Principal Executive Officer)
/s/ Amy E. Essex Chief Financial Officer May 16, 2007
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Amy E. Essex (Principal Financial and Accounting Officer)
/s/ James C. Rapin Chairman of the Board May 16, 2007
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James C. Rapin
/s/ Thomas R. Townsend Director May 16, 2007
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Thomas R. Townsend
/s/ Gary C. VanMassenhove Director May 16, 2007
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Gary C. VanMassenhove
/s/ Keith D. Wallace Director May 16, 2007
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Keith D. Wallace
EXHIBIT INDEX
Exhibit Number Description
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4 Form of Common Stock Certificate (incorporated by reference
to Exhibit 4 to the Registration Statement on Form SB-2
(Commission File No. 333-121178), originally filed by the
Company under the Securities Act of 1933, with the
Commission on December 10, 2004, and all amendments or
reports filed for the purpose of updating such description).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C.
10 First Federal of Northern Michigan Bancorp, Inc. 2006
Stock-Based Incentive Plan (incorporated by reference to
Appendix A to the proxy statement for the Company's 2006
Annual Meeting of Shareholders (Commission File No.
000-31957), filed by the Company under the Securities
Exchange Act of 1934, on April 10, 2006).
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (Contained in
Exhibit 5)
23.2 Consent of Plante & Moran, PLLC
24 Power of Attorney (contained in the signature page to this
Registration Statement).