sv8
As filed with the Securities and Exchange Commission on April 18, 2008
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MACKINAC FINANCIAL CORPORATION
(Exact name of Registrant as Specified in Its Charter)
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Michigan
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38-2062816 |
(State or Other Jurisdiction of Incorporation or Organization
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(I.R.S. Employer Identification No.) |
130 South Cedar Street, Manistique, Michigan 49854
(Address of Principal Executive Offices, including Zip Code)
Mackinac Financial Corporation 401(k) Plan
(Full Title of the Plan)
Ernie R. Krueger
Executive Vice President/Chief Financial Officer
Mackinac Financial Corporation
130 South Cedar Street
Manistique, Michigan 49854
(Name and Address of Agent for Service)
Telephone Number, Including Area Code, of Agent for Service: (906) 341-7158
Copy to:
Kent E. Shafer
Miller, Canfield, Paddock and Stone, P.L.C.
150 West Jefferson Ave., Suite 2500
Detroit, Michigan 48226
(313) 496-7570
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company.
See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer o |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller reporting company
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CALCULATION
OF REGISTRATION FEE
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Title of securities to be |
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Proposed maximum |
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Proposed maximum |
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Amount of registration |
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registered |
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Amount to be registered |
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offering price per share |
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aggregate offering price |
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fee |
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Common Stock |
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120,000 shares (1)(2) |
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$ |
8.00 |
(3) |
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$ |
960,000 |
(3) |
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$ |
37.73 |
(3) |
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(1) |
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All of the shares being registered will be issued and outstanding shares purchased in the
open market. The Company does not intend to issue any additional shares pursuant to the plan, and
this registration statement does not cover any such shares. The number of shares may be adjusted to
prevent dilution from stock splits, stock dividends and similar transactions. The Registration
Statement covers any such additional shares in accordance with Rule 416(a). |
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(2) |
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. |
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(3) |
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Estimated solely for purposes of computing the registration fee, at the average of the bid
and asked prices per share on April 16, 2008, pursuant to Rule 457(h). |
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Mackinac Financial Corporation (the Company) with the
Securities and Exchange Commission (the Commission) are incorporated by reference in this
Registration Statement:
(a) The Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2007;
(b) The Companys Current Reports on Form 8-K filed with the Commission on January 25, 2008,
February 22, 2008 (as amended by the Form 8-K/A filed February 27, 2008), and April 14, 2008; and
(c) The description of the Companys Common Stock contained in the Registration Statement on
Form S-2/A (SEC File No. 333 06017) filed with the Commission on July 19, 1996 and any amendment or
report filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14,
and 15(d) of the Securities Exchange Act of 1934 subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities being offered have been
sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated
by reference and to be a part hereof from the date of filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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), grants 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
our best interests 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 Companys best interests, 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.
The Companys Articles of Incorporation contain provisions entitling its directors and
executive officers to indemnification against certain liabilities and expenses to the full extent
permitted by Michigan law. Its Bylaws provide that the Company must indemnify to the full extent
permitted by law any person who is made, or threatened to be made, a party to any action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that
he, or a person of whom he is the legal representative, is or was a director, officer, employee or
agent of the Company, or serves or served any other enterprise at its request.
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 that might be imposed as a result of such claims, actions, suits or proceedings
that may be brought against them by reason of being or having been such directors and officers.
As far as indemnification for liabilities arising under the Securities Act may be permitted to
the Companys directors, officers, and controlling persons under the forgoing provisions or
otherwise, the Company has been advised that in the opinion of the SEC this type of indemnification
is against public policy as expressed in the Act and is therefore unenforceable. It is the stated
position of the SEC that: Insofar as indemnification for liabilities arising out of the Securities
Act of 1933 may be permitted to directors, officers, or persons controlling the
Registrant, under the foregoing provisions, the Registrant has been informed 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.
If a claim for indemnification against liabilities (other than the payment of expenses
incurred or paid by director, officer, or controlling person in the successful defense of any
action, suit, or proceeding) is asserted by a director, officer, or controlling person in
connection with the securities being registered, the Company 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 indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of that issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are part of this Registration Statement:
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Ex. No. |
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Description |
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4.1
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Specimen common stock certificate (filed as Exhibit 4.0 to
Registration Statement on Form S-3 filed May 2, 2005 (File No.
333-124520) and incorporated herein by reference) |
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4.2
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Mackinac Financial Corporation 401(k) Plan* |
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Not applicable All of the shares being registered will be issued
and outstanding shares purchased in the open market. The Company
does not intend to issue any additional shares pursuant to the
plan, and this registration statement does not cover any such
shares. |
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The Company will submit or has submitted the Mackinac Financial
Corporation 401(k) Plan and any amendment thereto to the Internal
Revenue Service (IRS) in a timely manner and has made or will
make all changes required by the IRS in order to qualify the plan. |
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15
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Not applicable |
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Consent of Plante & Moran, PLLC* |
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Power of attorney (see Signatures) |
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99
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Not applicable |
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:
(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 this registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to such
information in this registration statement; provided, however, that paragraphs (1)(i) and
(1)(ii) do not apply if 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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933,
each 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.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission 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.
(b) The undersigned registrant hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each filing of the registrants annual report pursuant
to Section 13(a) or 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.
(h) 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 in the Act and
will be governed by the final adjudication of such issue.
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 Manistique, State of Michigan on April 18, 2008.
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MACKINAC FINANCIAL CORPORATION
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By: |
/s/ Paul D. Tobias
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Paul D. Tobias |
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Chairman and Chief Executive Officer |
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POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby constitutes and appoints Paul D.
Tobias and Ernie R. Krueger, and each of them acting alone, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, 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, under the
Securities Act of 1933.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities indicated on April 18, 2008.
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/s/ Paul D. Tobias
Paul D. Tobias Chairman, Chief
Executive Officer & Director (principal
executive officer)
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/s/ Ernie R. Krueger
Ernie R. Krueger Executive Vice
President/Chief Financial Officer (principal
financial and accounting officer)
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/s/ Eliot R. Stark
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/s/ Joseph D. Garea |
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Eliot R. Stark Vice Chairman & Director
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Joseph D. Garea Director |
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/s/ Walter J. Aspatore
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/s/ Robert E. Mahaney |
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Walter J. Aspatore Director
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Robert E. Mahaney Director |
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/s/ Dennis B. Bittner
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/s/ Robert H. Orley |
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Dennis B. Bittner Director
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Robert H. Orley Director |
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/s/ Kelly W. George
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/s/ L. Brooks Patterson |
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Kelly W. George President & Director
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L. Brooks Patterson Director |
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/s/ Randolph C. Paschke |
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Randolph C. Paschke Director |
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MACKINAC FINANCIAL CORPORATION
401(k) PLAN
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By: |
/s/ Linda Bolda
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Linda Bolda, Trustee |
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And: |
/s/ Kelly W. George
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Kelly W. George, Trustee |
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And: |
/s/ Ernie R. Kruger
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Ernie R. Krueger, Trustee |
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INDEX TO EXHIBITS
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Ex. No. |
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Description |
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4.1
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Specimen common stock certificate (filed as Exhibit 4.0 to
Registration Statement on Form S-3 filed May 2, 2005 (File No.
333-124520) and incorporated herein by reference) |
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4.2
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Mackinac Financial Corporation 401(k) Plan* |
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5
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Not applicable All of the shares being registered will be issued
and outstanding shares purchased in the open market. The Company
does not intend to issue any additional shares pursuant to the
plan, and this registration statement does not cover any such
shares. |
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The Company will submit or has submitted the Mackinac Financial
Corporation 401(k) Plan and any amendment thereto to the Internal
Revenue Service (IRS) in a timely manner and has made or will
make all changes required by the IRS in order to qualify the plan. |
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15
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Not applicable |
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23
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Consent of Plante & Moran, PLLC* |
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Power of attorney (see Signatures) |
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99
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Not applicable |