-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KvEAPDpH6NAA40vA+7pZt7FZy4cgwPIfCLm5vm4F2R6DXIgLf3T936o7ciMIjEUI 07mLUq+NJwIEfefjJu1JTg== 0000906280-99-000101.txt : 19990403 0000906280-99-000101.hdr.sgml : 19990403 ACCESSION NUMBER: 0000906280-99-000101 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990401 EFFECTIVENESS DATE: 19990401 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BNCCORP INC CENTRAL INDEX KEY: 0000945434 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 450402816 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-75457 FILM NUMBER: 99585079 BUSINESS ADDRESS: STREET 1: 322 E MAIN CITY: BISMARK STATE: ND ZIP: 58501 BUSINESS PHONE: 7012503040 MAIL ADDRESS: STREET 1: 322 E MAIN CITY: BISMARK STATE: ND ZIP: 58501 S-8 1 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
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 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
(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. 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 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 EX-5 2 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 EX-23.1 3 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 -----END PRIVACY-ENHANCED MESSAGE-----