As filed with the Securities and Exchange Commission on September 20, 2000 -
Registration No. ____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FNBH BANCORP, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-2869722
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 East Grand River, Howell, Michigan 48843
(Address of Principal Executive Offices Including Zip Code)
FNBH Bancorp, Inc. Employees' Stock Purchase Plan
(Full Title of the Plan)
Barbara J. Nelson, 101 East Grand River, Howell, Michigan 48843
(Name and address of agent for service)
(517) 546-3150
(Telephone number, including area code, of agent for service)
Copies of Communications to:
Michael G. Wooldridge
Varnum, Riddering, Schmidt & Howlett LLP
Bridgewater Place, P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
<TABLE>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share (2) Offering Price(2) Fee
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
(no par value) 30,000 Shares(1) $17.70 $531,000 $140.18
====================================================================================================================
</TABLE>
(1) Includes 30,000 shares that may be issued pursuant to the FNBH Bancorp,
Inc. Employees' Stock Purchase Plan.
(2) For the purpose of computing the registration fee only, the price shown is
based upon the price of $17.70 per share, the per share book value of the
Common Stock of the Registrant, as of August 31, 2000, in accordance with
Rule 457(h).
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 of the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant's Annual Report on Form 10-K for the year ended December 31,
1999, which has been filed by the Registrant with the Commission (File No.
0-25752), is incorporated herein by reference. All other reports filed by the
Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") since the end of the fiscal year covered
by the foregoing Annual Report on Form 10-K are incorporated herein by
reference. All other reports or documents filed by the Registrant pursuant to
the requirements of Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date hereof and prior to the termination of the offering of
the securities offered hereby shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such reports or
documents. Any statement contained in a document incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained 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 description of the Registrant's Common Stock, the class of securities
offered pursuant to this Registration Statement, is contained in the
Registrant's Registration Statement filed pursuant to Section 12 of the Exchange
Act, and is incorporated herein by reference, including any subsequent
amendments or reports filed for the purpose of updating that description.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Registrant provide that its directors
and officers are required to be indemnified as of right to the fullest extent
permitted under the Michigan Business Corporation Act ("MBCA") in connection
with any actual or threatened civil, criminal, administrative or investigative
action, suit or proceeding (whether brought by or in the name of the Registrant,
a subsidiary or otherwise) in which a director or officer is a witness or which
is brought against a director or officer in his or her capacity as a director,
officer, employee, agent or fiduciary of the Registrant or of any corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
which the director or officer was serving at the request of the Registrant.
Persons who are not directors or officers of the Registrant may be similarly
indemnified in respect of said service to the extent authorized by the Board of
Directors of the Registrant. Under the MBCA, directors, officers, employees or
agents are entitled to indemnification against expenses (including attorney
fees) whenever they successfully defend legal proceedings brought against them
by reason of the fact that they hold such a position with the Registrant. In
addition, with respect to actions not brought by or in the right of the
Registrant, indemnification is permitted under the MBCA for expenses (including
attorney fees), judgments, fines, penalties and reasonable settlements if it is
determined that the person seeking indemnification acted in a good faith and in
a manner he or she reasonably believed to be in and not opposed to the best
interest of the Registrant or its shareholders and, with respect to criminal
proceedings, he or she had no reasonable cause to believe
S-1
<PAGE>
that his or her conduct was unlawful. With respect to actions brought by or in
the right of the Registrant, indemnification is permitted under the MBCA for
expenses (including attorney fees) and reasonable settlement, if it is
determined that the person seeking indemnification acted in good faith and in a
manner he or she reasonably believed to be in and not opposed to the best
interest of the Registrant or its shareholders; provided, indemnification is not
permitted if the person is found liable to the Registrant, unless the court in
which the action or suit was brought has determined that indemnification is fair
and reasonable in view of all the circumstances of the case.
The MBCA and the Registrant's Articles of Incorporation also authorize the
Registrant to provide indemnification broader than that set forth in the MBCA
and the Articles of Incorporation. Pursuant to this authority, the Registrant
has entered into indemnification agreements with each of its directors, which
provide for the prompt indemnification to the fullest extent permitted by
applicable law and for the prompt advancement of expenses, including reasonable
attorney fees, incurred in connection with any proceeding in which a director is
a witness or which is brought against a director in his or her capacity as a
director, officer, employee, agent or fiduciary of the Registrant or of any
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which the director is serving at the request of the Registrant.
Indemnification is permitted for expenses and reasonable settlement amounts
incurred in connection with a proceeding by or in the right of the Registrant
and for expenses, judgments, penalties, fines and reasonable settlement amounts
incurred in connection with the proceeding other than by or in the right of the
Registrant. Indemnification under the indemnity agreements is conditioned on the
director having acted in good faith and in a manner he or she reasonably
believes to be in or not opposed to the best interest of the Registrant and,
with respect to any criminal proceeding, he or she had no reasonable cause to
believe his or her conduct was unlawful. The Articles of Incorporation of the
Registrant also limit the personal liability of members of its Board of
Directors for monetary damages with respect to claims by the Registrant or its
shareholders resulting from certain negligent acts or omissions.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index which appears on page S-6.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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.
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<PAGE>
(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
offering.
The undersigned registrant hereby undertakes 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 Section 15(d) of the
Securities Exchange Act of 1934, and 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.
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 by the Act and will be governed by the final adjudication of
such issue.
S-3
<PAGE>
SIGNATURES
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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Howell, State of Michigan, on the 20th day of
September, 2000.
FNBH BANCORP, INC.
By /s/ Barbara Draper Martin
Barbara Draper Martin, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Barbara Draper Martin and Barbara J. Nelson, and
each of them, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and any other regulatory
authority, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing required and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on September 20, 2000, by the
following persons in the capacities indicated.
/s/ Barbara Draper Martin /s/ Barbara J. Nelson
Barbara Draper Martin, President Barbara J. Nelson, Chief Financial
and Director (Principal Executive Officer (Principal Financial and
Officer) Accounting Officer)
/s/ W. Rickard Scofield /s/ Harry E. Griffith
W. Rickard Scofield, Director Harry E. Griffith, Director
/s/ Gary R. Boss /s/ Dona Scott Laskey
Gary R. Boss, Director Dona Scott Laskey, Director
/s/ Donald K. Burkel __________________________________
Donald K. Burkel, Director James R. McAuliffe, Director
/s/ R. Michael Yost /s/ Randolph E. Rudisill
R. Michael Yost, Director Randolph E. Rudisill, Director
S-4
<PAGE>
Exhibit 23.1
KPMG
Suite 1200 Telephone 313 983 0200
150 West Jefferson Fax 313 983 0006
Detroit, MI 48226-4429 313 983 0007
313 983 0008
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
on From S-8 of FNBH Bancorp, Inc. of our report dated January 20, 2000, relating
to the consolidated balance sheets of FNBH Bancorp, Inc. and subsidiaries as of
December 31, 1999 and 1998, and the related consolidated statements of income,
stockholders' equity and comprehensive income, and cash flows for each of the
years in the three-year period ended December 31, 1999, which report is
incorporated by reference in the December 31, 1999, annual report on Form 10-K
of FNBH Bancorp, Inc.
/s/ KPMG LLP
September 20, 2000
Detroit, Michigan
S-6
<PAGE>
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
Exhibit 4 FNBH Bancorp, Inc. Employees' Stock Purchase Plan.
Exhibit 5 Opinion of Varnum, Riddering, Schmidt & Howlett LLP with
respect to the legality of the securities being registered
Exhibit 23.1 Consent of KPMG, LLP, included on page S-6 hereof
Exhibit 23.2 Consent of Varnum, Riddering, Schmidt & Howlett LLP (included
with the opinion filed as Exhibit 5)
Exhibit 24 Power of Attorney - included on page S-5 hereof
S-6
<PAGE>
EXHIBIT 5
September 20, 2000
FNBH Bancorp, Inc.
101 East Grand River
Howell, Michigan 48843
Re: Registration Statement on Form S-8 Relating to the FNBH Bancorp,
Inc. Employees' Stock Purchase Plan (the "Plan")
Gentlemen:
With respect to the Registration Statement on Form S-8 (the "Registration
Statement") filed by FNBH Bancorp, Inc., a Michigan corporation (the "Company")
with the Securities and Exchange Commission, for the purpose of registering
under the Securities Act of 1933, as amended, 30,000 shares of the Company's
common stock, no par value, for issuance pursuant to the Plan, we have examined
such documents and questions of law we consider necessary or appropriate for the
purpose of giving this opinion. On the basis of such evaluation, we advise you
that in our opinion the 30,000 shares covered by the Registration Statement,
when issued pursuant to the Plan, at the prices described in the Registration
Statement but not less than the par value thereof, and upon delivery of such
shares and payment therefor in accordance with the terms stated in the Plans and
the Registration Statement, will be duly and legally authorized, issued and
outstanding, and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or under the rules and regulations of
the Securities and Exchange Commission relating thereto.
Sincerely,
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
/s/ Varnum, Riddering, Schmidt & Howlett LLP
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