REGISTRATION NO. 333-83198
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 8, 2005
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
POST-EFFECTIVE AMENDMENT NO. 1
TO
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)
MARTIN A. THOMSON
100 SOUTH SECOND AVENUE
ALPENA, MICHIGAN 49707
(Name and Address of Agent for Service)
----------
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ALPENA
1996 STOCK OPTION PLAN
1996 RECOGNITION AND RETENTION PLAN
(Full Title of the Plan)
Copies to:
Mr. Martin A. Thomson Robert B. Pomerenk, ESQ.
President and Chief Executive Officer Luse Gorman Pomerenk & Schick
First Federal of Northern Michigan Bancorp, Inc. 5335 Wisconsin Avenue, N.W., Suite 400
100 South Second Avenue Washington, D.C. 20015
Alpena, Michigan 49707 (202) 274-2000
(989) 356-9041
PART I
ITEMS 1 AND 2. PLAN INFORMATION AND REGISTRANT INFORMATION AND EMPLOYEE PLAN
ANNUAL INFORMATION
This Post-Effective Amendment No. 1 to the Registration Statement on
Form S-8 (No. 333-83198) amends the Registration Statement on Form S-8 filed on
February 22, 2002, and is being filed pursuant to Rule 414 under the Securities
Act of 1933, as amended (the "Securities Act"), to reflect the completion of the
reorganization pursuant to which First Federal of Northern Michigan Bancorp,
Inc., a Maryland corporation (the "Registrant"), became the successor to Alpena
Bancshares, Inc., a Federal corporation ("Alpena Bancshares"). The stockholders
of Alpena Bancshares approved the reorganization at a special meeting of
stockholders on March 23, 2005. By virtue of the reorganization and through a
series of merger transactions, each share of issued and outstanding common stock
of Alpena Bancshares (except for those shares held by Alpena Banchares, M.H.C.,
Alpena Bancshares's mutual holding company parent) was exchanged for 1.8477
shares of common stock of the Registrant.
In accordance with paragraph (d) of Rule 414 under the Securities Act,
the Registrant expressly adopts this registration statement as its own
registration statement for all purposes of the Securities Act and the Securities
Exchange Act of 1934, as amended. The applicable registration fees were paid at
the time of the original filing of the Registration Statement.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
All documents filed by the Registrant pursuant to Sections 13(a) and (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 to be incorporated by
reference into this registration statement and be part hereof from the date of
filing of such documents. Any statement contained in this Registration
Statement, or in a document incorporated by reference herein, shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed
document which also is incorporated by reference 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.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission ("SEC"), or assumed by
the Registrant as the successor issuer to Alpena Bancshares, are incorporated by
reference herein and shall be deemed to be a part hereof:
a) Annual Report on Form 10-KSB filed with the SEC on March 31, 2005;
b) Forms 10-QSB for the quarters ended March 31, 2005 and June 30,
2005; and
c) The description of the Registrant's common stock contained in the
Registrant's registration statement on Form 8-A filed with the SEC on
March 22, 2005.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
2
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.
3
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. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
from the Registrant's Registration Statement on Form SB-2 filed with the SEC on
December 10, 2004, as amended into this Registration Statement (unless specified
otherwise):
4.1 Form of Common Stock Certificate (Incorporated by reference to the
Registrant's Registration Statement on Form SB-2 filed with the
SEC on December 10, 2004, as amended)
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. as to the legality
of the shares of common stock registered hereby.
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (Contained in the
opinion included as Exhibit 5).
23.2 Consent of Plante & Moran, PLLC (Incorporated by reference to the
Registrant's Annual Report on Form 10-KSB filed with the SEC on
March 31, 2005)
24 Power of Attorney (Contained in the signature page to this
Registration Statement).
99.1 First Federal Savings and Loan Association of Alpena 1996 Stock
Option Plan (Incorporated by reference to the Registrant's
Registration Statement on Form SB-2 filed with the SEC on December
10, 2004, as amended)
99.2 First Federal Savings and Loan Association of Alpena 1996
Recognition and Retention Plan (Incorporated by reference to the
Registrant's Registration Statement on Form SB-2 filed with the
SEC on December 10, 2004, as amended)
4
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 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; and
4. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (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 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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
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 Act and will
be governed by the final adjudication of such issue.
5
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
Post-Effective Amendment No. 1 to the 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 7th day of September, 2005.
FIRST FEDERAL OF NORTHERN MICHIGAN
BANCORP, INC.
Date: September 7, 2005 By: /s/ Martin A. Thomson
--------------------------
Martin A. Thomson, President and
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 issued pursuant to the First Federal Savings and
Loan Association of Alpena 1996 Stock Option Plan and 1996 Recognition and
Retention 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 on Form S-8 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.
/s/ Martin A. Thomas President, Chief Executive September 7, 2005
---------------------------- Officer and Director (Principal
Martin A. Thomson Executive Officer)
/s/ Amy E. Essex Chief Financial Officer September 7, 2005
---------------------------- (Principal Financial and
Amy E. Essex Accounting Officer)
* Chairman of the Board September 7, 2005
----------------------------
James C. Rapin
Director September ___, 2005
----------------------------
Thomas R. Townsend
* Director September 7, 2005
----------------------------
Gary C. VanMassenhove
* Director September 7, 2005
----------------------------
Keith D. Wallace
* Martin A. Thomson, by signing his name hereto, does sign this document
on behalf of the above-noted individuals, pursuant to power of attorney
duly executed by such individuals which were filed as part of the
signature page to this registration statement.
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Form of Common Stock Certificate (Incorporated by reference to
the Registrant's Registration Statement on Form SB-2 filed with
the SEC on December 10, 2004, as amended).
5 Opinion of Luse Gorman Pomerenk & Schick, P.C. as to the
legality of the shares of common stock registered hereby.
23.1 Consent of Luse Gorman Pomerenk & Schick, P.C. (Contained in the
opinion included as Exhibit 5).
23.2 Consent of Plante & Moran, PLLC (Incorporated by reference to
the Registrant's Annual Report on Form 10-KSB filed with the SEC
on March 31, 2005)
24 Power of Attorney (Contained in the signature page to this
Registration Statement).
99.1 First Federal Savings and Loan Association of Alpena 1996 Stock
Option Plan (Incorporated by reference to the Registrant's
Registration Statement on Form SB-2 filed with the SEC on
December 10, 2004, as amended)
99.2 First Federal Savings and Loan Association of Alpena 1996
Recognition and Retention Plan (Incorporated by reference to the
Registrant's Registration Statement on Form SB-2 filed with the
SEC on December 10, 2004, as amended)