As filed with the Securities and Exchange Commission on September 1, 2005 Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CLARKSTON FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
| Michigan (State or other jurisdiction of incorporation or organization) | 38-3412321 (I.R.S. Employer Identification No.) |
6600 Highland Road, Suite 24, Waterford, Michigan 48327
(Address of Principal Executive Offices) (Zip Code)
Clarkston Financial Corporation Employee Stock Purchase Plan
(Full Title of the Plan)
J. Grant Smith, 6600 Highland Road, Suite 24, Waterford, Michigan 48327, (248) 625-0710
(Name, address and telephone number, including area code of agent for service)
Copies of Communications to:
Harvey Koning
Varnum, Riddering, Schmidt & Howlett LLP
333 Bridge Street, N.W., P.O. Box 352
Grand Rapids, Michigan 49501-0352
(616) 336-6000
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee |
|---|---|---|---|---|
| Common Stock | 50,000 Shares(1) | $18.01 | $900,500 | $106 |
| (1) | These shares of Common Stock are issuable pursuant to the Clarkston Financial Corporation Employee Stock Purchase Plan. This Registration Statement also covers such indeterminable additional number of shares as may be issuable under the plans by reason of adjustment in the number of shares covered thereby. |
| (2) | For the purpose of computing the registration fee only, the price shown is based upon the price of $18.01 per share, the average of the high and low sales prices for the Common Stock of Clarkston Financial Corporation as reported on the OTC Bulletin Board on August 31, 2005, in accordance with Rule 457(c) and (h)(1). |
Pursuant to Rule 416(a) of the General Rules and Regulations under the Securities Act of 1933, this Registration Statement shall cover such additional securities as may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required in Part I of the Registration Statement will be provided to each option holder as required by Rule 428(b)(1). Such documents are not being filed with the Securities and Exchange Commission in accordance with the instructions to Form S-8, but constitute (along with the documents incorporated by reference into the registration statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference
Clarkston Financial Corporation (the “Company”) hereby incorporates by reference in this Registration Statement the following documents:
(a) The Company’s annual report on Form 10-K for the year ended December 31, 2004 filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), since the end of the period from inception through December 31, 1998, covered by the document referred to in (a) above.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Item 4.Description of Securities
The text disclosed under the heading “Description of Capital Stock — Common Stock” contained in the final prospectus filed with the Securities and Exchange Commission on or about November 25, 1998, pursuant to Rule 424(b) with respect to the Company’s Registration Statement on Form SB-2 (SEC File No. 333-63685) is incorporated herein by reference.
Item 5.Interests of Named Experts and Counsel
Not applicable.
Item 6.Indemnification of Directors and Officers
Sections 561-571 of the Michigan Business Corporation Act, as amended (the “MBCA”), grant the Company broad powers to indemnify any person in connection with legal proceedings brought against him by reason of his present or past status as an officer or director of the Company, provided that the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The MBCA also gives the Company broad powers to indemnify any such person against expenses and reasonable settlement payments in connection with any action by or in the right of the Company, provided the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, except that no indemnification may be made if such person is adjudged to be liable to the Company unless and only to the extent the court in which such action was brought determines upon application that, despite such adjudication, but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for reasonable expenses as the court deems proper. In addition, to the extent that any such person is successful in the defense of any such legal proceeding, the Company is required by the MBCA to indemnify him or her against expenses, including attorneys’ fees, that are actually and reasonably incurred by him or her in connection therewith.
S-2
The Company’s Articles of Incorporation contain provisions entitling directors and executive officers of the Company to indemnification against certain liabilities and expenses to the full extent permitted by Michigan law.
Under an insurance policy maintained by the Company, the directors and officers of the Company are insured within the limits and subject to the limitations of the policy, against certain expenses in connection with the defense of certain claims, actions, suits or proceedings, and certain liabilities which might be imposed as a result of such claims, actions, suits or proceedings, which may be brought against them by reason of being or having been such directors and officers.
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:
(a) 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 (a)(i) and (a) (ii) do not apply if the registration statement is on Form S-3, Form S-8, or Form F-3, 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. |
(b) 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.
(c) 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, 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 bonafide offering thereof.
S-3
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 registrant pursuant to the foregoing provisions 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 a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or 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.
S-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company 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 Clarkston, State of Michigan, on the 25th day of June, 2005.
| CLARKSTON FINANCIAL CORPORATION By: /s/ Edwin L. Adler —————————————— Edwin L. Adler Chief Executive Officer and a Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dawn M. Horner and J. Grant Smith, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him 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 June 25, 2005, by the following persons in the capacities indicated.
| Signatures | Title |
| /s/ Edwin L. Adler Edwin L. Adler | Chairman, Director and Chief Executive Officer (Principal Eexecutive Officer) |
| /s/ J. Grant Smith J. Grant Smith | Chief Financial Officer (Principal Financial and Accounting Officer) |
| /s/ Louis D. Beer Louis D. Beer | Director |
| /s/ William J. Clark William J. Clark | Director |
| /s/ Charles L. Fortinberry Charles L. Fortinberry | Director |
| /s/ Thomas E. Kimble Thomas E. Kimble | Director |
| /s/ Bruce H. McIntyre Bruce H. McIntyre | Director and Secretary |
| /s/ John H. Welker John H. Welker | Director |
S-5
EXHIBIT INDEX
The following exhibits are filed as a part of the Registration Statement:
| Exhibit 4 | Clarkston Financial Corporation Employee Stock Purchase Plan, incorporated by reference to Appendix B to the Registrant's 2005 Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on March 31, 2005 |
| Exhibit 5 | Opinion of Varnum, Riddering, Schmidt & Howlett LLP |
| Exhibit 23(a) | Consent of Plante & Moran, PLLC |
| Exhibit 23(b) | Consent of Varnum, Riddering, Schmidt & Howlett LLP-included in Exhibit 5 |
| Exhibit 24 | Power of Attorney - included on page S-5 hereof |
S-6