AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 18, 2005
REGISTRATION NO. 333-121178
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM SB-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FIRST FEDERAL OF NORTHERN MICHIGAN BANCORP, INC.
(Name of Small Business Issuer in Its Charter)
MARYLAND 6712
(State or Other Jurisdiction of (Primary Standard Industrial
Incorporation or Organization) Classification Code Number)
32-0135202
(I.R.S. Employer
Identification Number)
100 SOUTH SECOND AVENUE
ALPENA, MICHIGAN 49707
(989) 356-9041
(Address and Telephone Number of
Principal Executive Offices)
100 SOUTH SECOND AVENUE
ALPENA, MICHIGAN 49707
(Address of Principal Place of Business)
MARTIN A. THOMSON
100 SOUTH SECOND AVENUE
ALPENA, MICHIGAN 49707
(989) 356-9041
(Name, Address and Telephone Number of Agent for Service)
COPIES TO:
ROBERT B. POMERENK, ESQ.
STEVE LANTER, ESQ.
LUSE GORMAN POMERENK & SCHICK, P.C.
5335 WISCONSIN AVENUE, N.W., SUITE 400
WASHINGTON, D.C. 20015
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: [X] 333-121178
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
======================================== =================== ==================== ==================== =====================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
---------------------------------------- ------------------- -------------------- -------------------- ---------------------
Common Stock, $0.01 par value per share 3,853,613 shares $10.00 $38,536,130 (1) $4,883(2)
---------------------------------------- ------------------- -------------------- -------------------- ---------------------
Participation Interests (3) 123,963 -- -- --
---------------------------------------- ------------------- -------------------- -------------------- ---------------------
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Registration fee previously paid.
(3) The securities of First Federal of Northern Michigan Bancorp, Inc. to be
purchased by the First Federal of Northern Michigan Employees' Savings &
Profit Sharing Plan and Trust adopted by First Federal of Northern
Michigan are included in the amount shown for Common Stock. Accordingly,
no separate fee is required for the participation interests. In
accordance with Rule 457(h) of the Securities Act, as amended, the
registration fee has been calculated on the basis of the number of
shares of Common Stock that may be purchased with the current assets of
such Plan.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES
ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(A), MAY DETERMINE.
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Articles 12 and 13 of the Articles of Incorporation of First Federal of
Northern Michigan Bancorp, Inc., a Maryland corporation (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 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Amount
------
* Legal Fees and Expenses........................................ $ 200,000
* Accounting Fees and Expenses................................... 50,000
* Conversion Agent and Data Processing Fees...................... 10,000
* Marketing Agent Fees and Expenses, including legal fees (1).... 206,944
* Appraisal Fees and Expenses.................................... 34,000
* Business Plan Fees and Expenses................................ 22,000
* Printing, Photocopying, Postage, Mailing....................... 65,000
* Filing Fees (OTS, NASD and SEC)................................ 19,883
* Nasdaq National Market Listing Fees............................ 100,000
* SEC EDGAR Document Conversion.................................. 25,000
* Other.......................................................... 5,337
------------
* Total ......................................................... $ 738,164
============
-----------------
* Estimated
(1) First Federal of Northern Michigan Bancorp, Inc.. has retained Ryan Beck
& Co. to assist in the sale of common stock on a best efforts basis in
the offerings. Fees are estimated at the midpoint of the .......offering
range.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
Not Applicable.
ITEM 27. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES:
The exhibits filed as part of this registration statement are as
follows:
(A) LIST OF EXHIBITS
1.1 Engagement Letter between First Federal of Northern Michigan Bancorp,
Inc. and Ryan Beck & Co., Inc*.
1.2 Form of Agency Agreement between First Federal of Northern Michigan
Bancorp, Inc. and Ryan Beck & Co., Inc.*
1.3 Addendum to Engagement Letter between First Federal of Northern Michigan
Bancorp, Inc. and Ryan Beck & Co., Inc*
2 Plan of Conversion and Reorganization*
3.1 Articles of Incorporation of First Federal of Northern Michigan Bancorp,
Inc.*
3.2 Bylaws of First Federal of Northern Michigan Bancorp, Inc.*
4 Form of Common Stock Certificate of First Federal of Northern Michigan
Bancorp, Inc.*
5 Opinion of Luse Gorman Pomerenk & Schick regarding legality of
securities being registered*
8 Federal Tax Opinion of Luse Gorman Pomerenk & Schick*
10.1 Form of Change in Control Agreements*
10.2 Employment Agreement with Ralph Stepaniak***
10.3 1996 Stock Option Plan*
10.4 1996 Recognition and Retention Plan*
21 Subsidiaries of Registrant*
23.1 Consent of Luse Gorman Pomerenk & Schick (contained in Opinions included
as Exhibits 5 and 8)*
23.2 Consent of Plante & Moran PLLC*
23.3 Consent of RP Financial LC*
24 Power of Attorney (set forth on signature page)
99.1 Appraisal Agreement between First Federal of Northern Michigan Bancorp,
Inc. and RP Financial LC.*
99.2 Business Plan Agreement between First Federal of Northern Michigan
Bancorp, Inc. and Keller & Company, Inc. *
99.3 Appraisal Report of RP Financial LC. *,**
99.4 Letter of RP Financial LC. with respect to Subscription Rights*
99.5 Marketing Materials*
99.6 Order and Acknowledgment Form*
-------------------------------
* Previously filed.
** Supporting financial schedules filed in paper format only, pursuant to
Rule 202 of Regulation S-T. Available for inspection, during business
hours, at the principal offices of the SEC in Washington, D.C.
*** Incorporated by reference to Form 10-KSB filed on March 30, 2004.
ITEM 28. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information 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
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) Include any additional or changed material information as
the plan of distribution.
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement as the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities being registered that remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the small business issuer pursuant to the foregoing
provisions, or otherwise, the small business issuer 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 small business issuer of expenses incurred or paid by a
director, officer or controlling person of the small business issuer 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 small business issuer 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
In accordance with 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 of filing on Form SB-2 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of Alpena,
State of Michigan on February 18, 2005.
FIRST FEDERAL OF NORTHERN MICHIGAN
BANCORP, INC.
By: /s/ Martin A. Thomson
---------------------------------------
Martin A. Thomson
President, Chief Executive Officer and
Director
(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
statement on Form SB-2 relating to the offering of the Company's common stock,
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.
In accordance with the requirements of the Securities Act of 1933, this
registration statement was signed by the following persons in the capacities and
on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Martin A. Thomas President, Chief Executive February 18, 2005
------------------------------------ Officer and Director (Principal
Martin A. Thomson Executive Officer)
/s/ Amy E. Essex Chief Financial Officer February 18, 2005
------------------------------------ (Principal Financial and
Amy E. Essex Accounting Officer)
/s/ James C. Rapin Chairman of the Board February 18, 2005
------------------------------------
James C. Rapin
/s/ Thomas R. Townsend Director February 18, 2005
------------------------------------
Thomas R. Townsend
/s/ Gary C. Vanmassenhove Director February 18, 2005
------------------------------------
Gary C. VanMassenhove
/s/ Keith D. Wallace Director February 18, 2005
------------------------------------
Keith D. Wallace