Registration No. 333-_________
As filed with the Securities and Exchange Commission on November 3, 2009
UNITED STATES
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.
(Exact Name of Registrant as Specified in its Charter)
Maryland 32-0135202
(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)
First Federal of Northern Michigan Employees'
Savings & Profit Sharing Plan and Trust
(Full Title of the Plan)
Copies to:
Mr. Michael W. Mahler Robert B. Pomerenk, Esquire
Chief Executive Officer Luse Gorman Pomerenk & Schick, P.C.
First Federal of Northern 5335 Wisconsin Ave., N.W., Suite 780
Michigan Bancorp, Inc. Washington, DC 20015-2035
100 South Second Avenue (202) 274-2000
Alpena, Michigan 49707
(989) 356-9041
(Name, Address and Telephone Number
of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Securities Exchange Act of 1934, as
amended. (Check one):
Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [ ]
Smaller reporting company [X]
(Do not check if a smaller reporting company)
__________________
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [X]
CALCULATION OF REGISTRATION FEE
===================================================================================================================
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
--------------------------------------------------------------------------------------------------------------------
Participation Interests (1) __ __ (2)
--------------------------------------------------------------------------------------------------------------------
-----------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h)(3) no registration fee is required to be paid.
__________________
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.
2
PART I.
Items 1 and 2. Plan Information and Registrant Information and Employee Plan
Annual Information
This Registration Statement relates to the registration of an indeterminate
number of participation interests in the First Federal of Northern Michigan
Employees' Savings & Profit Sharing Plan and Trust (the "Plan"). Documents
containing the information required by Part I of the Registration Statement have
been or will be sent or given to participants in the Plan, as specified 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 Company's Prospectus (Commission File No. 333-121178) filed with the
Commission on February 22, 2005 pursuant to Rule 424(b)(3) of the Securities
Act;
b) The Company's Annual Report on Form 10-K for the year ended December 31,
2008 (File No. 000-31957), filed with the Commission on March 31, 2009, pursuant
to Section 13(a) of the Securities Exchange Act of 1934, as amended;
c) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since the end of the
year covered by the Annual Report on Form 10-K referred to in (a) above; and
d) The description of the Company's common stock contained in the
Registration Statement on Form 8-A filed with the Commission on March 22, 2005
(File No. 000-31957).
e) The Company's Form 11-K for the Plan for the year ended December 31,
2008 (File No. 000-31957), filed with the Commission on June 29, 2009, pursuant
to Section 15(d) of the Securities Exchange Act of 1934, as amended.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, 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.
3
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.
4
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
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Independent Registered Public Accounting Firm Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
99 Prospectus Supplement **
_________________________
* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form SB-2 (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 the Prospectus Supplement (Commission File No.
333-121178) filed by the Company under the Securities Act with the
Commission on February 22, 2005.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
5
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.
6
SIGNATURES
The Registrant. Pursuant to 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 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 20th day of October, 2009.
FIRST FEDERAL OF NORTHERN MICHIGAN
BANCORP, INC.
By: /s/ Michael W. Mahler
Michael W. Mahler
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
Michael W. Mahler, as our true and lawful attorney and agent, to do any and all
things in our names in the capacities indicated below which said Michael W.
Mahler 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
participation interests under the First Federal of Northern Michigan Employees'
Savings & Profit Sharing Plan and Trust, 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 Michael W. Mahler 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/ Michael W. Mahler Director and October 20, 2009
------------------------------------ Chief Executive Officer
Michael W. Mahler (Principal Executive Officer)
/s/ Amy E. Essex Chief Financial Officer, October 20, 2009
------------------------------------ Treasurer and Corporate Secretary
Amy E. Essex (Principal Financial and Accounting
Officer)
/s/ Martin A. Thomson Chairman October 20, 2009
------------------------------------
Martin A. Thomson
/s/ Gary VanMassenhove Director October 20, 2009
------------------------------------
Gary VanMassenhove
/s/ James C. Rapin Director October 20, 2009
------------------------------------
James C. Rapin
/s/ Keith Wallace Director October 20, 2009
------------------------------------
Keith Wallace
/s/ Thomas R. Townsend Director October 20, 2009
------------------------------------
Thomas R. Townsend
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the Plan) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Alpena, state of Michigan, on October 20, 2009.
First Federal of Northern Michigan
Employees' Savings & Profit Sharing
Plan and Trust
By: /s/ Joseph W. Gentry II
Title: Vice President Human Resources
Plan Administrator
EXHIBIT INDEX
Regulation S-K Reference to Prior Filing or
Exhibit Number Document Exhibit No. Attached Hereto
--------------- -------- ---------------------------
4 Form of Common Stock Certificate *
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. Attached as Exhibit 5
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. Contained in Exhibit 5
23.2 Consent of Independent Registered Public Accounting Firm Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
99 Prospectus Supplement **
____________________
* Incorporated by reference to Exhibit 4 to the Registration Statement on
Form SB-2 (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 the Prospectus Supplement (Commission File No.
333-121178) filed by the Company under the Securities Act with the
Commission on February 22, 2005.