UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Amendment No. 1)
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2012
or
¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________to ___________
Commission file number 0-25752
FNBH BANCORP, INC.
(Exact name of Registrant as specified in its charter)
MICHIGAN | No. 38-2869722 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
101 East Grand River, Howell, Michigan | 48843 | |
(Address of principal executive offices) | (Zip Code) |
Registrant's telephone number, including area code: (517) 546-3150
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, no par value | Preferred Stock Purchase Rights |
(Title of Class) | (Title of Class) |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes¨ Nox
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes¨ Nox
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yesx No¨
Indicate by check mark whether registrant has submitted electronically and posted on its corporate web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yesx No¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendments to this Form 10-K.x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company (as defined in Exchange Act Rule 12b-2). Large accelerated filer¨ Accelerated filer¨ Non-accelerated filer¨Smaller reporting companyx
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes¨ Nox
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant's most recently completed second fiscal quarter. The aggregate market value of common stock held by non-affiliates as of June 29, 2012, was $458,870.
The number of outstanding shares of common stock (no par value) as of April 1, 2013 was 445,115.
Documents Incorporated by Reference:
A portion of the Corporation's Form 10-K filed April 1, 2013 is incorporated by reference in Part III of this report.
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EXPLANATORY NOTE
FNBH Bancorp, Inc. (the "Corporation") is filing this Amendment No. 1 to amend Items 10 through 14 of its Form 10-K filed on April 1, 2013 (the "Original Filing") for the purpose of including the information required by these Items due to the fact that the Corporation's definitive proxy statement for the 2013 annual meeting of shareholders will not be filed with the SEC pursuant to SEC Regulation 14A on or before April 30, 2013 and therefore will not be incorporated by reference. In connection with this Amendment No. 1, the Corporation is including as exhibits updated certifications required under Section 302 of the Sarbanes-Oxley Act of 2002. Solely for this reason, the Corporation also has restated Part IV of the Original Filing in Part IV of this Amendment No. 1. Except as set forth in this Explanatory Note, this Amendment No. 1 does not alter or restate any of the information set forth in the Original Filing.
This Amendment No. 1 continues to speak as of the date of the Form 10-K filed on April 1, 2013 and we have not updated the disclosures contained herein to reflect events that have occurred since the date of the Original Filing. Accordingly, this Amendment No. 1 should be read in conjunction with our other filings, if any, made with the Securities and Exchange Commission subsequent to the date of the Original Filing.
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TABLE OF CONTENTS
PART III | ||
Item 10 | Directors, Executive Officers and Corporate Governance | 4 |
Item 11 | Executive Compensation | 5 |
Item 12 | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | 6 |
Item 13 | Certain Relationships, Related Transactions and Director Independence | 8 |
Item 14 | Principal Accountant Fees and Services | 9 |
PART IV | ||
Item 15 | Exhibits and Financial Statement Schedules | 10 |
SIGNATURES | 11 | |
EXHIBIT INDEX | 12 |
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PART III
Item 10. Directors, Executive Officers and Corporate Governance.
Directors
The following information relating to the principal occupation or employment and the qualifications of our directors has been furnished to the Corporation by the respective directors and director nominees. Each of these persons has been engaged in the occupations stated below for more than five years, unless noted.
Name | Principal Occupation and Qualifications | Age | Director of Corporation Since(1) |
Director Whose Term Expires in 2013; Nominee for Election as Director for a Term Expiring in 2016 | |||
Timothy H. Corrigan | Vice President of Corrigan Oil Company in Brighton, Michigan. Mr. Corrigan was appointed to the Board of Directors of the Corporation in January 2011. Mr. Corrigan is a large shareholder of the Corporation. He is a highly successful businessman with insight and knowledge of the local economic market. Mr. Corrigan is an active and respected community leader. | 49 | 2011 |
Directors Whose Terms Expire in 2014 | |||
R. Michael Yost | CEO of the MPY Group, LLC, since 2008; Retired Managing Director, The Auto Club Group from 1981 to 2008. Mr. Yost is a long standing director, having served on the Board since 1997. He is a large shareholder of the Corporation and is concerned with shareholder value. Mr. Yost is a successful local businessman and a respected, active community leader. | 64 | 1997 |
Philip C. Utter(2) | President of Specialty Contract Carriers, Inc., a trucking company, since 1988; President of Specialty Contract Brokerage, Inc., a freight brokerage company, since 1995; and a member of Hall and Utter Associates, LLC, a condominium development company, since 1997. Mr. Utter was appointed to the Board of Directors of the Corporation in November 2009 and appointed as Chairman of the Corporation's Board of Directors in October 2010. He is a large shareholder of the Corporation and is concerned with shareholder value. He is a successful local businessman and respected community leader. | 54 | 2009 |
Directors Whose Terms Expire in 2015 | |||
Stanley B. Dickson, Jr.(3) | Attorney & Certified Public Accountant (CPA) with Dickson & Associates PC since 1980. The Board of Directors appointed Mr. Dickson as a director of the Bank in 2009 and as a director of the Corporation effective March 25, 2010. Mr. Dickson was appointed Vice Chairman of the Corporation's Board of Directors in January 2011. Mr. Dickson is currently the largest beneficial owner of the Corporation's stock and is concerned with shareholder value. | 60 | 2010 |
Ronald L. Long | President & CEO of the Corporation and the Bank; President of Independent Bank East Michigan from 1993 through September 2007; and SVP-Business Development, Independent Bank, from October 2007 through January 2008. He is a large shareholder of the Corporation and is concerned with shareholder value. Mr. Long is a local resident of the Corporation's market area and he is active in community affairs. | 54 | 2008 |
(1) | All persons who are directors of the Corporation are also directors of the Corporation's subsidiary bank, First National Bank in Howell (the "Bank"). |
(2) | Chairman of the Board of Directors of the Corporation and the Bank. |
(3) | Vice Chairman of the Board of Directors of the Corporation and the Bank. |
Executive Officers
The information regarding executive officers called for by this Item is contained in Part I of the Original Filing and is incorporated here by reference.
Section 16(a) Beneficial Ownership Reporting Compliance
Pursuant to Section 16 of the Securities Exchange Act of 1934, the Corporation's directors and executive officers, as well as any person holding more than 10% of its common stock, are required to report initial statements of ownership of the Corporation's securities and changes in such ownership to the Securities and Exchange Commission. To our knowledge, and based solely upon our review of all required reports furnished to us, all reports required to be filed in 2012 were timely filed.
Code of Ethics for CEO and Senior Financial Officers
The Board has adopted a Code of Ethics for the Chief Executive Officer and Senior Financial Officers, which includes the principal executive officer, principal financial officer and controller. This Code is posted on our website and can be obtained free of charge through the Corporation's Corporate Secretary at 101 East Grand River, Howell, Michigan 48843. Any changes to or waivers of this Code of Ethics will be disclosed on our website.
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Audit Committee Financial Expert
The Audit Committee of the Corporation's Board of Directors does not currently have any member that qualifies as an "audit committee financial expert" under SEC rules. A former director qualified as an "audit committee financial expert," but since his resignation in 2009, no person who meets such qualifications has been nominated or appointed to the Board.
Shareholder Nominations for Board
The Restated Articles of Incorporation of the Corporation contain certain procedural requirements applicable to shareholder nominations of directors. In general, shareholders may nominate a person to serve as a director if the shareholder provides written notice to the Corporation not later than 30 days prior to the first anniversary date of the preceding year's Annual Meeting. The notice must include (1) the name and address of the shareholder who intends to make the nomination and of the person or persons nominated, (2) a representation that the shareholder is a current record holder and will continue to hold those shares through the date of the meeting and intends to appear in person or by proxy at the meeting, (3) a description of all arrangements between the shareholder and each nominee, (4) the information regarding each nominee as would be required to be included in a proxy statement filed under Regulation 14A of the Securities Exchange Act of 1934 had the nominee been nominated by the Board of Directors, and (5) the consent of each nominee to serve as director. No changes to these procedural requirements were made in 2012.
Item 11. Executive Compensation.
Summary Compensation Table
The following table sets forth all of the compensation earned by the Corporation's Chief Executive Officer, SVP and Senior Lender, and SVP and Chief Credit Officer (our "Named Executive Officers") for the year ended December 31, 2012.
Name & Principal Position | Year | Salary | Bonus | Stock Awards | Non-Equity Incentive Plan Compensation | All OtherCompensation | Total |
($) | ($) | ($) | ($) | ($) | ($) | ||
Ronald L. Long President & CEO | 2012 2011 2010 | 256,500 256,500 257,625 | --- --- --- | --- --- --- | --- --- --- | --- --- --- | 256,500 256,500 257,625 |
Gerald L. Moyer SVP & Senior Lender | 2012 2011 2010 | 123,500 124,050 124,041 | --- --- --- | --- --- --- | --- --- --- | --- --- --- | 123,500 124,050 124,041 |
Daniel Wollschlager SVP & Chief Credit Officer(1) | 2012 2011 | 150,000 26,730 | --- --- | --- --- | --- ---
| --- --- | 150,000 26,730 |
(1) | Mr. Wollschlager was hired as SVP and Chief Credit Officer on October 27, 2011. |
Outstanding Equity Awards
None of our Named Executive Officers held any outstanding equity awards as of December 31, 2012.
Retirement Plans
Other than the Bank's standard 401(k) plan, neither the Corporation nor the Bank maintains any retirement or other plan providing for retirement benefits for any of our Named Executive Officers. In 2012, no matching contributions were made to the 401(k) accounts of any of the Named Executive Officers.
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Director Compensation
The following table sets forth certain information regarding the compensation earned by each nonemployee director who served on the Board of Directors of the Corporation and the Bank in 2012. Directors who are Corporation employees are not compensated for their service as directors.
Name | Fees Earned | |||
Stanley B. Dickson, Jr. | $ | 7,750 | ||
Barbara Draper(1) | 5,525 | |||
Philip C. Utter | 17,688 | |||
R. Michael Yost | 16,500 | |||
Timothy H. Corrigan | 13,250 | |||
Total | $ | 60,713 |
(1) | Ms. Draper resigned from the Boards of the Corporation and the Bank effective March 28, 2012. |
In 2012, our directors, who serve as directors of both the Corporation and the Bank, were paid a portion of an annual retainer of $8,100, payable monthly, through September 2012. In addition, each director was paid $250 for each regularly scheduled Board committee meeting attended through September 2012. Thereafter, no retainer or committee meeting fees were paid to directors due to the financial condition of the Corporation. No fees were paid to directors who are also employees of the Bank.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The following table sets forth certain information as of April 1, 2013, as to any person who is known to the Corporation to be the beneficial owner of more than five percent (5%) of the Corporation's common stock.
Name and Address of Beneficial Owner | Amount and Nature of Beneficial Ownership | Percent of Class(2) | ||||||
Moross Limited Partnership(1) | 51,743 | 11.37 | % | |||||
15621 Windmill Pointe Drive | ||||||||
Grosse Pointe Park, MI 48230 |
(1) | Based on information provided by Mr. Stanley Dickson, Jr., a director of the Corporation and the Bank. Moross Limited Partnership is a Michigan limited partnership comprised of its general partner, Pacesetter Management, Inc., and a limited partner, Moross Trust. Mr. Dickson is the President of Pacesetter Management, Inc. |
(2) | Based on a total of 455,115 shares of common stock outstanding as of April 1, 2013. |
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The following table sets forth certain information as of April 1, 2013, as to the common stock of the Corporation owned beneficially by each director, each Named Executive Officer, and all directors and executive officers of the Corporation as a group.
Number of | Percent of | |||||||||
Name of Beneficial Owner | Title | Shares(1) | Class(2) | |||||||
Ronald L. Long | CEO & President, Director | 1,794 | * | |||||||
Gerald L. Moyer | SVP Commercial Loans | - | N/A | |||||||
Mark J. Huber | SVP & CFO | - | N/A | |||||||
Daniel Wollschlager | SVP & Chief Credit Officer | - | N/A | |||||||
Stanley B. Dickson, Jr. | Director | 51,743 | (3) | 11.37 | % | |||||
Philip C. Utter | Director | 6,815 | (4) | 1.50 | % | |||||
R. Michael Yost | Director | 1,801 | (5) | * | ||||||
Timothy H. Corrigan | Director | 1,812 | * | |||||||
All Executive Officers and Directors as a Group (8 persons) | 63,965 | 14.05 | % |
*Represents less than one percent
(1) | This information is based upon the Corporation's records as of April 1, 2013, and information supplied by the persons listed above. The number of shares stated in this column includes shares owned of record by the shareholder and shares which, under federal securities regulations, are deemed to be beneficially owned by the shareholder. Unless otherwise indicated below, the persons named in the table have sole voting and sole investment power or shared voting and investment power with their respective spouses, with respect to all shares beneficially owned. |
(2) | Based on a total of 455,115 shares of Common Stock outstanding as of April 1, 2013. |
(3) | Shares owned by Moross Limited Partnership. Mr. Dickson is the President of Pacesetter Management, Inc., the general partner of Moross Limited Partnership. |
(4) | Excludes 286 shares owned by spouse. |
(5) | Includes 8 shares held jointly with child. |
Potential Change in Control
Mr. Stanley Dickson, a director of the Corporation and the Bank, has subscribed to purchase shares of our common stock in the private placement being conducted by the Corporation. If and when such private placement is completed, Mr. Dickson would become the beneficial owner of approximately 20% of the Corporation's common stock, including the common stock he is already deemed to beneficially own through Moross Limited Partnership. (As noted in footnote 1 to the first beneficial ownership table in this Item 12, Mr. Dickson is the President of Pacesetter Management, Inc., the general partner of Moross Limited Partnership.) In addition, if and when the private placement is completed, the Corporation currently expects that persons related to Mr. Dickson (including immediate family members and their related interests) would own approximately 4% of the Corporation's common stock.
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Equity Compensation Plans
The following table presents information regarding the Corporation's equity compensation plans:
Number of securities to be issued upon exercise of outstanding options, warrants, and rights | Weighted – average exercise price of outstanding options, warrants, and rights | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a) | |
Plan Category | (a) | (b) | (c) |
Equity compensation plans approved by shareholders | 0 | 0 | 2,293(1) |
Equity compensation plans not approved by shareholders |
None |
None |
None |
(1) Available under the Compensation Plan for Nonemployee Directors
Item 13. Certain Relationships, Related Transactions, and Director Independence.
Related Party Transactions
Certain directors and officers of the Corporation have had, and are expected to have in the future, transactions with the Bank, or have been directors or officers of corporations or members of partnerships which have had, and are expected to have in the future, transactions with the Bank. All such transactions with officers and directors, either directly or indirectly, have been made in the ordinary course of business and on substantially the same terms, including interest rates and collateral, as those prevailing at the same time for comparable transactions with other customers, and these transactions do not involve more than the normal risk of collectability or present other unfavorable features. All such future related party transactions will be made in the ordinary course of business, on terms no less favorable to the Corporation or the Bank than with other customers. Loans with related parties are subject to approval by a majority of the Corporation's independent, outside, disinterested directors. The Corporation applied this policy regarding related party transactions to all of the transactions described above.
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Certain of our directors have subscribed to purchase our subordinated debentures and shares of our common stock in the private placement being conducted by the Corporation. The investment subscription from three of our directors exceeds the $120,000 threshold established by SEC rules. Mr. Timothy Corrigan, Mr. Stanley Dickson, and Mr. Philip Utter have subscribed to invest approximately $472,000, $5.0 million, and $293,000, respectively. In addition, Mr. Dickson's brother has subscribed to invest approximately $1.0 million in the private placement. Completion of the private placement is subject to a number of conditions precedent; as a result, there is no assurance as to when or whether this private placement will be completed.
Determination of Independence of Board Members
As noted in the table set forth in Item 10 above, the Corporation's directors during 2012 were Timothy H. Corrigan, R. Michael Yost, Philip C. Utter, Stanley B. Dickson, Jr., and Ronald L. Long. In addition, Barbara M. Draper served as a director until her resignation from the Board on March 28, 2012.
The Corporation's common stock is not listed on Nasdaq or any other national securities exchange. Nevertheless, the Board has determined that each person who served as a director during 2012, other than Ronald L. Long (current CEO), qualifies as an "Independent Director," as such term is defined in Nasdaq Marketplace Rule 5605(a)(2). The Board has also determined that each member of the three committees of the Board meets the independence requirements applicable to those committees as prescribed by the Nasdaq listing requirements, and, as to the audit committee, under the applicable rules of the Securities and Exchange Commission (SEC). Also, there are no family relationships between or among the directors, nominees or executive officers of the Corporation.
Item 14. Principal Accountant Fees and Services.
The following sets forth the fees billed to the Corporation for the fiscal years ended December 31, 2012 and December 31, 2011 by BDO USA, LLP, the Corporation's principal accounting firm:
2012 | 2011 | |||||||
BDO USA, LLP | ||||||||
Audit Fees | $ | 200,540 | $ | 181,774 | ||||
Audit Related | - | - | ||||||
Tax Fees(1) | 18,370 | 22,946 | ||||||
Other | - | - | ||||||
Total | $ | 218,910 | $ | 204,720 |
(1) | Consists primarily of tax consulting and tax return preparation. |
The audit committee has established a pre-approval policy for audit, audit related, and tax services that can be performed by the Corporation's independent registered public accounting firm. Under this pre-approval policy, the audit committee is required to approve, in advance of the services being rendered, any audit, audit related or tax services to be provided by the Corporation's then independent registered public accounting firm. Subject to certain limitations, the authority to grant pre-approvals may be delegated to one or more members of the audit committee. All fees paid to BDO USA, LLP for services performed in 2012 and 2011 were approved pursuant to such pre-approval policy.
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PART IV
Item 15. Exhibits and Financial Statement Schedules.
(a) Documents filed as part of this report on Form 10-K.
1.Financial Statements
The financial statements are set forth under Item 8 of the Original Filing.
2.Financial Statement Schedules
Not applicable.
3.Exhibits (Numbered in accordance with Item 601 of Regulation S-K)
The Exhibit Index is located on the final page of this Amendment No. 1 on Form 10-K/A.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, dated April 30, 2013.
FNBH BANCORP, INC. | ||
/s/Ronald L. Long | Ronald L. Long, President and Chief Executive Officer | |
(Principal Executive Officer) | ||
/s/ Mark J. Huber | Mark J. Huber, Chief Financial Officer | |
(Principal Financial and Accounting Officer) |
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EXHIBIT INDEX
The following exhibits are filed herewith, indexed according to the applicable assigned number:
Exhibit Number | ||
(31.1) | Certificate of the Chief Executive Officer of FNBH Bancorp, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
(31.2) | Certificate of the Chief Financial Officer of FNBH Bancorp, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
(32.1) | Certificate of the Chief Executive Officer of FNBH Bancorp, Inc. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. 1350). | |
(32.2) | Certificate of the Chief Financial Officer of FNBH Bancorp, Inc. pursuant to Section 906 of the Sarbanes Oxley Act of 2002 (18 U.S.C. 1350). |
The following exhibits, indexed according to the applicable assigned number, were previously filed by the Registrant.
Exhibit | ||||
Number | Original Filing Form and Date | |||
(3.1) | Restated Articles of Incorporation of the Registrant | Exhibit 3.1 of Form 10, effective June 30, 1995 ("Form 10") | ||
(3.2) | Amendment to the Corporation's Articles of Incorporation to Increase Authorized Shares | Appendix I of Proxy Statement dated March 17, 1998 | ||
(3.3) | Amendment to the Corporation's Articles of Incorporation to Authorize the Issuance of Preferred Shares | Appendix A of Proxy Statement dated December 31, 2008 | ||
(3.4) | Amendment to the Corporation's Articles of Incorporation to Increase Authorized Shares | Exhibit 3.4 to Form 10-K filed March 30, 2010 | ||
(3.5) | Amendment to the Corporation's Articles of Incorporation to Effect a 1-for-7 Reverse Stock Split of the Corporation's Outstanding Common Stock | Exhibit 3.1 to Form 8-K filed October 7, 2011 | ||
(3.6) | Certificate of Designation that Amended the Corporation's Articles of Incorporation to Designate 10,000 Shares of Series A Junior Participating Preferred Stock | Exhibit 4.2 to Form 8-A, effective October 14, 2011 ("Form 8-A") | ||
(3.7) | Amendment to the Articles of Incorporation of the Corporation, filed with the State of Michigan on June 4, 2012. | Exhibit 3.7 to Form 10-K filed April 1, 2013. | ||
(23.1) | Consent of BDO USA, LLP | Exhibit 23.1 to Form 10-K filed April 1, 2013. | ||
(24) | Power of Attorney | Included on Signature Page of Form 10-K filed April 1, 2013. | ||
101.INS | Instance Document | Exhibit 101.INS to Form 10-K filed April 1, 2013. | ||
101.SCH | XBRL Taxonomy Extension Schema Document | Exhibit 101.SCH to Form 10-K filed April 1, 2013. | ||
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document | Exhibit 101.CAL to Form 10-K filed April 1, 2013. | ||
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document | Exhibit 101.DEF to Form 10-K filed April 1, 2013. | ||
101.LAB | XBRL Taxonomy Extension Label Linkbase Document | Exhibit 101.LAB to Form 10-K filed April 1, 2013. | ||
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document | Exhibit 101.PRE to Form 10-K filed April 1, 2013. |
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