1
As filed with the Securities and Exchange Commission on April 16, 1998
Registration No. 333-______
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
D&N FINANCIAL CORPORATION D&N CAPITAL CORPORATION
(Exact name of Registrant as specified (Exact name of Registrant as
in its charter) specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
--------------- ---------------
34-2790646 31-1517665
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
---------------------------
400 Quincy Street
Hancock, Michigan 49930
(906) 482-2700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
D&N BANK 401(k) PLAN & TRUST
(Full title of the plan)
James S. Fleischer, P.C.
John S. Pettibone III, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
1100 New York Ave., N.W.
Washington, D.C. 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
- ------------------------------------ --------------------- ------------------- ------------------- ---------------------
D&N Financial Corporation
Common Stock, $.01 par value 160,000 shares(1) $27.375(2) $4,380,000(2) $1,293(2)
D&N Capital Corporation
Preferred Stock, $25 par value 20,000 shares(1) $26.25(3) $525,000(3) $ 155(3)
Interests in Plan(4) N/A(4) N/A N/A N/A(4)
==================================== ===================== =================== =================== =====================
(1) Estimated maximum aggregate number of shares of D&N Financial Corporation
("D&N") common stock and D&N Capital Corporation ("Capital") preferred
stock purchasable with employee and employer contributions under the Plan
during the next 60 months.
(2) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $27.375 per share, which was the
average of the high and low prices of the D&N common stock on April 13,
1998, as reported on the Nasdaq National Market.
(3) Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee at $26.25 per share, which was the average
of the high and low prices of the Capital preferred stock on April 13,
1998, as reported on the Nasdaq National Market.
(4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein. In accordance with Rule 457(h)(2) no separate fee
calculation is made for plan interests.
2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in the D&N Bank 401(k) Plan and Trust
(the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, 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.
I-2
3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents previously or concurrently filed by D&N
Financial Corporation (the "Company") with the Commission to the Registration
Statement are hereby incorporated by reference in this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 (File No. 0-17137) filed pursuant to Rule 13a-1 of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to above;
(c) the Company's definitive Proxy Statement for its Annual Meeting of
Stockholders held on April 30, 1998;
(d) the description of the common stock, par value $.01 per share, of the
Registrant contained in the Registrant's Registration Statement on Form
S-2 (File No. 33-69300) filed with the Commission on September 23, 1993
and all amendments thereto or reports filed for the purpose of updating
such description; and
(e) the Plan's Annual Report on Form 11-K for the plan year ended December
31, 1996.
The following documents previously or concurrently filed by D&N Capital
Corporation ("Capital") with the Commission to the Registration Statement and
hereby incorporated by reference in this Registration Statement:
(a) Capital's Registration Statement on Form S-11, filed with the
Commission on April 29, 1997 (SEC NO. 333-26039);
(b) Capital's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 (File No. 0-22767) filed pursuant to Rule 13a-1 of the Exchange
Act; and
(c) all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the filing of the registration statement referred to
above (File No. 0-22767).
All documents subsequently filed by the Company and Capital
(collectively, the "Registrant") with the Commission pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act, 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
incorporated by reference into this Registration Statement and to be a part
thereof from the date of the filing of such documents. Any statement contained
in the documents incorporated, or deemed to be incorporated, by reference herein
or therein shall be deemed to be modified or superseded for purposes of this
II-1
4
Registration Statement and the Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
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 and the Prospectus.
The Registrant shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to the
Corporate Secretary, D&N Financial Corporation, 400 Quincy Street, Hancock,
Michigan 49930, telephone number (906) 482-2700.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
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 Ten of the Company's Certificate of Incorporation provides for
indemnification of directors and officers of the Registrant against any and all
liabilities, judgments, fines and reasonable settlements, costs, expenses and
attorneys' fees incurred in any actual, threatened or potential proceeding,
except to the extent that such indemnification is limited by Delaware law and
such law cannot be varied by contract or bylaw. Section Ten also provides for
the authority to purchase insurance with respect thereto.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified against
expenses actually and reasonably incurred in defense of a proceeding by or on
behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good
II-2
5
faith; (ii) was acting in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation or other corporation or
enterprise, as appropriate; (iii) with respect to a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful; and (iv) was not adjudged
to be liable to the corporation or other corporation or enterprise (unless the
court where the proceeding was brought determines that such person is fairly and
reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person being
indemnified has met the requisite standard of conduct. Such determination may be
made (i) by the corporation's board of directors by a majority vote of a quorum
consisting of directors not at the time parties to such proceeding; or (ii) if
such a quorum cannot be obtained or the quorum so directs, then by independent
legal counsel in a written opinion; or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that he
is not entitled to be indemnified by the corporation against such expenses.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company and Capital are insured against certain liabilities,
including certain liabilities under the Securities Act.
Section 6.2 of Capital's Certificate of Incorporation provides for
indemnification of any director, officer, employee or agent of Capital or any
other person who is serving at the request of Capital in any such capacity with
another corporation, partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan) to the fullest extent
permitted by the General Corporation Law of the State of Delaware or as it may
hereafter be amended, and any such indemnification may continue as to any person
who has ceased to be a director, officer, employee or agent and may inure to the
benefit of the heirs, executors and administrators of such a person.
Item 7. Exemption from Registration Claimed.
Not Applicable.
II-3
6
Item 8. Exhibits.
Regulation S-K Reference to Prior Filing or
Exhibit Exhibit Number Attached
Number Document Hereto
- ------------------ -------- ----------------------------
4 Instruments Defining the Rights of Security
Holders, Including Indentures:
4.1 Certificate of Incorporation of D&N *
Financial Corporation
4.2 Certificate of Incorporation of D&N **
Capital Corporation
4.3 Bylaws of D&N Financial Corporation *
4.4 Bylaws of D&N Capital Corporation **
4.5 D&N Bank 401(k) Plan and Trust Attached as Exhibit 4.5
5 Opinion of Silver, Freedman & Taff, L.L.P. Attached as Exhibit 5
23 Consents of Experts and Counsel:
Consent of Silver, Freedman & Taff, L.L.P. (Included in Exhibit 5)
Consent of Coopers and Lybrand L.L.P. Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
- ------------------------
* Filed as exhibits to the Company's Registration Statement on Form S-2 (File
No. 33-69300) filed with the Commission on September 23, 1993 and all
amendments thereto or reports filed for the purpose of updating such
description. All of such previously filed documents are hereby incorporated
herein by reference in accordance with Item 601 of Regulation S-K.
** Filed as exhibits to Capital's Registration Statement on Form S-11 (File No.
333-26039) filed with the Commission on April 29, 1997 and all amendments
thereto or reports filed for the purpose of updating such description. All
of such previously filed documents are hereby incorporated herein by
reference in accordance with Item 601 of Regulation S-K.
The Company hereby undertakes that it will submit or has submitted the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as
amended.
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.
II-4
7
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act 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 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 Commission such
indemnification is against public policy as expressed in the Securities
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 Securities Act and will
be governed by the final adjudication of such issue.
II-5
8
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 Hancock, State of Michigan, on April 15, 1998.
D&N FINANCIAL CORPORATION
By: /s/ George J. Butvilas
--------------------------------
George J. Butvilas, Director, President and
Chief Executive Officer (Duly Authorized
Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George J. Butvilas and Peter L. Lemmer,
or either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and re-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 all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming said
attorneys-in-fact and agents or their substitutes or 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 by the following persons in the
capacities and on the date as indicated.
By: /s/ George J. Butvilas Date: April 15, 1998
------------------------------------ --------------
George J. Butvilas
Chief Executive Officer,
President And Director
(Principal Executive and Operating Officer)
II-6
9
By:/s/ Kenneth D. Seaton Date: April 15, 1998
------------------------------------------ --------------
Kenneth D. Seaton
Chairman of The Board
By:/s/ Joseph C. Bromley Date: April 15, 1998
------------------------------------------ --------------
Joseph C. Bromley
Director
By:/s/ B. Thomas M. Smith, Jr. Date: April 15, 1998
------------------------------------------ --------------
B. Thomas M. Smith, Jr.
Director
By:/s/ Stanley A. Jacobson Date: April 15, 1998
------------------------------------------ --------------
Stanley A. Jacobson
Director
By:/s/ Peter Van Pelt Date: April 15, 1998
------------------------------------------ --------------
Peter Van Pelt
Director
By:/s/ Randolph P. Piper Date: April 15, 1998
------------------------------------------ --------------
Randolph P. Piper
Director
By:/s/ Steven E. Zack Date: April 15, 1998
------------------------------------------ --------------
Steven E. Zack
Director
By:/s/ Mary P. Cauley Date: April 15, 1998
------------------------------------------ --------------
Mary P. Cauley
Director
By:/s/ Steven Coleman Date: April 15, 1998
------------------------------------------ --------------
Steven Coleman
Director
By:/s/ Kenneth R. Janson Date: April 15, 1998
------------------------------------------ --------------
Kenneth R. Janson
Executive Vice President and
Chief Financial Officer
(Chief Financial and Accounting Officer)
II-7
10
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 Hancock, State of Michigan, on April 15, 1998.
D&N CAPITAL CORPORATION
By: /s/ Kenneth R. Janson
-----------------------------------------
Kenneth R. Janson, Director, President and
Chief Executive Officer (Duly Authorized
Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth R. Janson and Peter L. Lemmer, or
either of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and re-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 all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming said
attorneys-in-fact and agents or their substitutes or 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 by the following persons in the
capacities and on the date as indicated.
By:/s/ Kenneth R. Janson Date: April 15, 1998
------------------------------------ --------------
Kenneth R. Janson
Chief Executive Officer,
President And Director
(Principal Executive and Operating Officer)
II-8
11
By:/s/ George J. Butvilas Date: April 15, 1998
------------------------------------------ --------------
George J. Butvilas
Chairman of the Board
And Director
By:/s/ Richard E. West Date: April 15, 1998
------------------------------------------ --------------
Richard E. West
Vice President and Director
By:/s/ Gail A. Mroz Date: April 15, 1998
------------------------------------------ --------------
Gail A. Mroz
Director
By:/s/ James Bogan Date: April 15, 1998
------------------------------------------ --------------
James Bogan
Director
By:/s/ William J. McGarry Date: April 15, 1998
------------------------------------------ --------------
William J. McGarry
Director
By:/s/ Daniel D. Greenlee Date: April 15, 1998
------------------------------------------ --------------
Daniel D. Greenlee
Chief Financial Officer and Treasurer
II-9
12
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the trustees or other persons who administer the employee benefit plan, have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hancock, State of
Michigan on April 15, 1998.
401(k) PLAN ADMINISTRATIVE COMMITTEE
By: /s/ George J. Butvilas By: /s/ John R. Clemmer
------------------------------ ---------------------------
George J. Butvilas John R. Clemmer
By: By: /s/ Peter W. Smith
------------------------------ ----------------------------
Mary Jo Kristapovich Peter W. Smith
By: /s/ Donald W. Schulze
-----------------------
Donald W. Schulze
BANKERS TRUST COMPANY OF DES MOINES,
IOWA, TRUSTEE
By: /s/ Patty Ashbaugh
------------------------
Name: Patty Ashbaugh
Title: Assistant Vice President
and Trust Officer
II-10
13
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
D&N FINANCIAL CORPORATION
D&N CAPITAL CORPORATION
14
EXHIBIT INDEX
Exhibit
Number
-------
4.5 D&N Bank 401(k) Plan & Trust
5 Opinion of Silver, Freedman & Taff, L.L.P.
23.1 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit
5)
23.2 Consent of Coopers & Lybrand L.L.P.