As filed with the Securities and Exchange Commission on April 1, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
BNCCORP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 45-0402816
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification Number)
322 EAST MAIN
BISMARCK, NORTH DAKOTA 58501
(Address, including zip code, of
Registrant's principal executive offices)
BNCCORP, INC. 1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the Plan)
__________
GREGORY K. CLEVELAND
PRESIDENT AND CHIEF OPERATING OFFICER
BNCCORP, INC.
322 EAST MAIN
BISMARCK, NORTH DAKOTA 58501
(701) 250-3040
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
WILLIAM B. MASTERS, ESQ.
JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, L.L.P.
201 ST. CHARLES AVENUE
NEW ORLEANS, LOUISIANA 70170-5100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered{(1)} Per Share Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock 2,600 $ 17.75{(2)} $ 46,150{(2)} $ 12.83
($.01 par value per share) 37,400 $ 8.63{(3)} $ 322,762{(3)} $ 89.73
Total 40,000 $ 368,912 $ 103.00
</TABLE>
(1) Upon a stock split, stock dividend or similar transaction in the future
and during the effectiveness of this Registration Statement involving
Common Stock of the Company, the number of shares registered shall be
automatically increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933.
(2) Computed in accordance with Rule 457, based upon the price at which
currently outstanding options are exercisable.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based on
the average of the high and low price per share of the Common Stock on the
Nasdaq Stock Market on March 30, 1999.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by BNCCORP, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission"),
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1998 filed pursuant to Section 13 of the 1934 Act; and
(b) The description of the Common Stock incorporated by reference in
Item 1 of the Company's Registration Statement on Form 8-A dated June 21,
1995 from page 50 of the Company's Registration Statement on Form SB-2,
Registration No. 33-92368 under the heading "Description of Capital Stock."
All reports filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold shall, except to the
extent otherwise provided by Regulation S-K or any other rule promulgated
by the Commission, be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify its directors and officers in a variety of
circumstances, which may include liabilities under the Securities Act of
1933. In addition, Section 9 of the Company's By-laws requires the Company
to indemnify its officers and directors against expenses and liabilities
incurred in connection with defending actions brought against them for
negligence or misconduct in their official capacities.
In addition, each of the Company's directors has entered into an
indemnity agreement that provides that the Company will indemnify the
directors against any costs and expenses, judgments, settlements and fines
incurred in connection with any claim involving a director by reason of his
position as a director; provided that the director meets certain standards
of conduct for claims that (i) have been successfully defended, or (ii) two
impartial directors have determined that, with respect to the conduct
giving rise to such claim, the director acted in good faith. No
indemnification may be made, however, for claims in which the director has
been adjudicated in a final judgment to be liable to the Company, except to
the extent that the court finds indemnification to be proper. The Company
has purchased insurance permitted by the Delaware General Corporation Law
on behalf of directors and officers, which cover liabilities under the
Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
5 Opinion of Counsel of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. (included in Exhibit 5).
__________
ITEM 9. UNDERTAKINGS.
(a) 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 the registration statement or any material
change to such information 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.
(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.
(b) 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, 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.
(c) 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 proceedings) 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 of 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.
II-1
<PAGE>
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 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 Bismarck, State of North Dakota, on April 1,
1999.
BNCCORP, INC.
/S/ TRACY J. SCOTT
Tracy J. Scott
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Tracy J. Scott and Gregory K. Cleveland, or
either one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and in his 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, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ TRACY J. SCOTT Director, Chairman of the April 1, 1999
Tracy J. Scott Board and Chief Executive Officer
(Principal Executive Officer)
/S/ GREGORY K. CLEVELAND Director, President and Chief April 1, 1999
Gregory K. Cleveland Operating Officer (Principal
Financial and Accounting Officer)
/S/ BRAD J. SCOTT Director April 1, 1999
Brad J. Scott
/S/ JOHN A. MALMBERG Director April 1, 1999
John A. Malmberg
/S/ JOHN A. HIPP, M.D. Director April 1, 1999
John A. Hipp, M.D.
/S/ RICHARD M. JOHNSEN, JR. Director April 1, 1999
Richard M. Johnsen, Jr.
/S/ THOMAS J. RESCH Director April 1, 1999
Thomas J. Resch
/S/ JOHN M. SHAFFER Director April 1, 1999
John M. Shaffer
/S/ JERRY R. WOODCOX Director April 1, 1999
Jerry R. Woodcox
S-1
EXHIBIT 5
JONES, WALKER
WAECHTER, POITEVENT
CARRERE & DENEGRE, L.L.P.
April 1, 1999
BNCCORP, Inc.
322 East Main
Bismarck, North Dakota 58501
Gentlemen:
We have acted as counsel for BNCCORP, Inc., a Delaware corporation
(the "Company"), in connection with the Company's registration statement on
Form S-8 (the "Registration Statement") with respect to the issuance by the
Company of 40,000 shares of the common stock of the Company, $.01 par value
per share (the "Common Stock"), pursuant to the terms of the Company's 1998
Non-Employee Director Stock Option Plan (the "Plan").
Based upon the foregoing, and upon our examination of such matters as
we deem necessary in order to furnish this opinion, we are of the opinion
that the shares of Common Stock referred to herein, when issued for at
least par value on the terms described in the Plan, will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /S/ WILLIAM B. MASTERS
William B. Masters
NEW ORLEANS OFFICE: PLACE ST. CHARLES
201 ST. CHARLES AVENUE
NEW ORLEANS, LOUISIANA 70170-5100
504-582-8000 FAX 504-582-8012
BATON ROUGE OFFICE: FOUR UNITED PLAZA
8555 UNITED PLAZA BOULEVARD
BATON ROUGE, LOUISIANA 70809-7000
504-231-2000 FAX 504-231-2010
WASHINGTON, D.C. OFFICE: SUITE 475
1225 NEW YORK AVENUE, N.W.
WASHINGTON, D. C. 20005-6156
202-828-8363 FAX 202-828-6907
LAFAYETTE OFFICE: SUITE 120
500 DOVER BOULEVARD
LAFAYETTE, LOUISIANA 70503-5269
318-406-5610 FAX 318-406-5620
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report
dated January 22, 1999, included in BNCCORP, INC.'s Form 10-KSB for the
year ended December 31, 1998 and to all references to our Firm included
in this registration statement.
/S/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Minneapolis, Minnesota,
April 1, 1999