OLD SECOND BANCORP INC (Form: S-8, Received: 05/29/2019 18:05:02)

As filed with the Securities and Exchange Commission on May 29, 2019

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

OLD SECOND BANCORP, INC.

(Exact name of registrant as specified in its charter)

Delaware

36-3143493

(State or other jurisdiction of
incorporation or organization)

(I.R.S. Employer Identification No.)

37 South River Street

Aurora, Illinois 60507
(Address of principal executive offices) (Zip Code)

Old Second Bancorp, Inc. 2019 Equity Incentive Plan

(Full title of the Plan)

James L. Eccher

President and Chief Executive Officer

Old Second Bancorp, Inc.

37 South River Street

Aurora, Illinois 60507

(Name and address of agent for service)

(630) 892-0202

(Telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☒
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

CALCULATION OF REGISTRATION FEE

Title of securities to be registered

Amount to be
registered

Proposed maximum
offering price per
share (1)

Proposed maximum
aggregate offering
price (1)

Amount of
registration
fee (2)

Common Stock, $1.00 par value per share

600,000 (3)

$12.505

$7,503,000

$909.36

(1)

Estimated solely for the purpose of calculating the registration fee, based, in accordance with Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), on the average of the high and low prices for Old Second Bancorp, Inc.’s common stock on The NASDAQ Global Select Market on May 23, 2019, which date is within five business days prior to filing this Registration Statement.

(2)

Amount of the Registration Fee was calculated pursuant to Section 6(b) of the Securities Act, and was determined by multiplying the aggregate offering price by 0.0001212

(3)

Represents shares of common stock issuable under the Old Second Bancorp, Inc. 2019 Equity Incentive Plan. In addition to such shares, pursuant to Rule 416(a) under the Securities Act, this Registration Statement covers an undetermined number of shares of common stock of the registrant that may become issuable to prevent dilution from stock splits, stock dividends or similar transactions with respect to the shares registered hereunder.

EXPLANATORY NOTE

The purpose of this Form S-8 Registration Statement (the “Registration Statement”) is to register an aggregate of 600,000 shares of Old Second Bancorp, Inc. (“we,” “our,” “us,” “Old Second” or the “Company”) common stock, $1.00 par value per share (the “Common Stock”), that may be offered pursuant to the Old Second Bancorp, Inc. 2019 Equity Incentive Plan (the “Plan”).

PART I

The document(s) containing the information specified in Part I will be sent or given to Plan participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.

PART II

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.

The following documents filed with the Commission by the Company are hereby incorporated in this Registration Statement by reference:

The Company’s Annual Report on Form 10-K filed with the Commission on March 7, 2019 for the year ended December 31, 2018;

The Company’s Quarterly Report on Form 10-Q filed with the Commission on May 7, 2019 for the quarter ended March 31, 2019;

The Company’s Current Reports on Form 8-K filed with the Commission on January 2, 2019, January 15, 2019, April 1, 2019, April 16, 2019 and May 22, 2019 (other than those portions of the documents deemed not to be filed); and

The description of the Company’s capital stock included in the Company’s Current Report on Form 8-K filed with the Commission on May 29, 2019 and all amendments or reports filed for the purpose of updating such description.

All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended subsequent to the date of this Registration Statement (other than any such documents or portions thereof that are furnished and not deemed filed with the SEC, 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 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.

Any statement contained in this Registration Statement or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by reference herein or in any subsequently filed document which is deemed to be incorporated by reference herein 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.

ITEM 4. DESCRIPTION OF SECURITIES.

Not applicable.

ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.

Not applicable.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Delaware Law. Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or another enterprise if serving at the request of the corporation. Depending on the character of the proceeding, a corporation may indemnify against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding if the person indemnified acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. In the case of an action by or in the right of the corporation, no indemnification may be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or in the defense of any action, suit or proceeding referred to above, or in the defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.

Certificate of Incorporation and Bylaws. Article VIII of our Restated Certificate of Incorporation, as amended, provides that we shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, indemnify all persons whom we may indemnify pursuant thereto. Section 8.8 of our Bylaws contains indemnification provisions substantially similar to Section 145 of the Delaware General Corporation Law.

Liability Insurance. We have obtained directors’ and officers’ liability insurance. The policy provides for coverage including prior acts and liabilities under the Securities Act, within the limits and subject to the limitations of such insurance.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.

Not applicable.

ITEM 8. EXHIBITS.

The list of exhibits is set forth under “Exhibit Index” at the end of this Registration Statement and is incorporated herein by reference.

ITEM 9. UNDERTAKINGS.

1. 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, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (1)(a)(i) and (1)(a)(ii) 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 SEC 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.

(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.

2. 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 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.

3. 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 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.

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 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 Aurora, Illinois, on May 29, 2019.

OLD SECOND BANCORP, INC.
(Registrant)

By:

/s/ JAMES L. ECCHER

Name: James L. Eccher

Title: President and Chief Executive Officer

KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints James L. Eccher and Bradley S. Adams, and each of them singly, his or her true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for him or her 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 (any of which amendments may make such changes and additions to this Registration Statement as such attorneys-in-fact may deem necessary or appropriate) and to file the same, with all exhibits thereto, and any other documents that may be required in connection therewith, granting unto said attorneys-in-fact and agents full power and authority 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 attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registration Statement has been signed below by the following persons in the capacities set forth below and on May 29, 2019:


Signature		Title


/s/ William B. Skoglund		Chairman of the Board and Director
William B. Skoglund

/s/ James L. Eccher		President, Chief Executive Officer and Director (principal executive officer)
James L. Eccher

/s/ Bradley S. Adams		Executive Vice President and Chief Financial Officer (principal financial and accounting officer)
Bradley S. Adams

/s/ Gary S. Collins		Vice Chairman and Director
Gary S. Collins

/s/ Edward R. Bonifas		Director
Edward R. Bonifas

/s/ Barry C. Finn		Director
Barry C. Finn


/s/ William J. Kane		Director
William J. Kane

/s/ John Ladowicz		Director
John Ladowicz

/s/ Hugh H. McLean		Director
Hugh H. McLean

/s/ Duane Suits		Director
Duane Suits

/s/ James F. Tapscott		Director
James F. Tapscott

/s/ Patti Temple Rocks		Director
Patti Temple Rocks

EXHIBIT INDEX


Exhibit Number		Description

3.1		Restated Certificate of Incorporation of Old Second Bancorp, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Annual Report on Form 10-K filed on March 11, 2016).
3.2		Amendment to Restated Certificate of Incorporation of Old Second Bancorp, Inc. (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on May 22, 2019).
3.3		Amended and Restated Bylaws of Old Second Bancorp, Inc. (incorporated by reference to Exhibit 3.2 of the Company’s Annual Report on Form 10-K filed on March 11, 2016).
4.1		Specimen Common Stock Certificate of Old Second Bancorp, Inc. (incorporated by reference to Exhibit 4.1 of the Company’s Registration Statement on Form S-1 filed on January 17, 2014).
4.2		Indenture, dated as of December 15, 2016, between the Company and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on December 15, 2016).
4.3		First Supplemental Indenture, dated as of December 15, 2016, between the Company and Wells Fargo Bank National Association (incorporated by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed on December 15, 2016).
4.4		Form of 5.750% Fixed-to-Floating Rate Senior Notes Due 2026 (incorporated by reference to Exhibit 5.1 of the Company’s Current Report on Form 8-K filed on December 15, 2016).
4.5		Restated Certificate of Incorporation, as amended (included as Exhibits 3.1 and 3.2).
4.6		Amended and Restated Bylaws (included as Exhibit 3.3).
4.7		Old Second Bancorp, Inc. 2019 Equity Incentive Plan (incorporated by reference to Appendix A to Old Second Bancorp, Inc.’s Definitive Proxy Statement filed on April 19, 2019).
4.8		Form of Employee Time Vesting Restricted Stock Unit Agreement*
4.9		Form of Director Time Vesting Restricted Stock Unit Agreement*
5.1		Opinion of Nelson Mullins Riley & Scarborough, LLP regarding the validity of the securities to be issued.*
23.1		Consent of Plante & Moran, PLLC.*
23.2		Consent of Nelson Mullins Riley & Scarborough, LLP (included in Exhibit 5.1).
24.1		Power of Attorney (contained on the signature pages of this Registration Statement).

* Filed herewith.

Exhibit 4.8

old second bancorp, inc.

2019 Equity Incentive Plan

Time Vesting Restricted Stock Unit Award Agreement

The Participant specified below has been granted a restricted stock unit award (the “ Award ”) by Old Second Bancorp, Inc. , a Delaware corporation (the “ Company ”), under the Old Second Bancorp, Inc. 2019 Equity Incentive Plan (the “ Plan ”). The Award shall be subject to the terms of the Plan and the terms set forth in this Restricted Stock Unit Award Agreement (“ Award Agreement ”).

Section 1. Award . The Company has granted to the Participant the Award of restricted stock units (each such unit, an “ RSU ”), where each RSU represents the right of the Participant to receive one share of common stock of the Company, $1.00 par value per share (each a “ Share ,” and collectively the “ Shares ”) in the future once the Restricted Period (as defined below) ends, subject to the terms of this Award Agreement and the Plan.

Section 2. Terms of Restricted Stock Unit Award . The following words and phrases relating to the Award have the following meanings:

(a) The “ Participant ” is [●].

(b) The “ Grant Date ” is [●].

Except for words and phrases otherwise defined in this Award Agreement, any capitalized word or phrase in this Award Agreement has the meaning set forth in the Plan.

Section 3. Restricted Period .

(a) The “ Restricted Period ” for each installment of RSUs set forth in the table immediately below (each, an “ Installment ”) shall begin on the Grant Date and end as described in the schedule set forth in the table immediately below; provided that the Participant’s Termination of Service has not occurred prior thereto:

Installment	Restricted Period will end on:
100% of RSUs	3 rd anniversary of Grant Date

(b) Notwithstanding the foregoing provisions of this ‎Section 3 , the Restricted Period for all the RSUs shall cease immediately and such RSUs shall become fully vested immediately upon the Participant’s Termination of Service due to the Participant’s Retirement, Disability or death. For purposes of this Award Agreement, “ Retirement ” shall mean the Participant’s voluntary Termination of Service on or after the attainment of 62 years of age or 60 years of age and 10 years of service with the Company; provided, however, that Participant’s

voluntary Termination of Service in anticipation of the Company taking action to terminate Participant’s employment for Cause shall not qualify as a Retirement.

(d) Except as set forth in ‎Section 3‎(b) and ‎Section 3‎(c) above, if the Participant’s Termination of Service occurs prior to the expiration of one or more Restricted Periods, the Participant shall forfeit all right, title and interest in and to any Installment(s) still subject to a Restricted Period as of such Termination of Service.

Section 4. Settlement of RSUs . Delivery of Shares or other amounts under this Award Agreement and the Plan shall be subject to the following:

(a) Delivery of Shares . The Company shall deliver to the Participant one Share free and clear of any restrictions in settlement of each of the vested and unrestricted RSUs within 30 days following the end of the respective Restricted Period.

(b) Compliance with Applicable Laws. Notwithstanding any other term of this Award Agreement or the Plan, the Company shall have no obligation to deliver any Shares or make any other distribution of benefits under this Award Agreement or the Plan unless such delivery or distribution complies with all applicable laws and the applicable rules of any securities exchange or similar entity.

(c) Certificates Not Required. To the extent that this Award Agreement and the Plan provide for the issuance of Shares, such issuance may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rules of any securities exchange or similar entity.

Section 5. Withholding . All vesting and delivery of Shares pursuant to the Award shall be subject to withholding of all applicable taxes. The Participant (or if applicable, permitted assigns, heirs and Designated Beneficiaries (as defined below)) shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Participant pursuant to the Award (including, for the avoidance of doubt, by withholding vested Shares to which the Participant is otherwise entitled under the Award), the amount of any required withholding taxes in respect of the Award and to take all such other action as the Committee deems necessary to satisfy all obligations for the payment of such withholding taxes; further provided that, unless otherwise approved by the Committee, any withholding taxes in respect of the Award shall be satisfied through the withholding of vested Shares to which the Participant is otherwise entitled under the Award (provided, however, such Shares may not be used to satisfy more than the Company’s maximum statutory withholding obligation or, if applicable, such lesser amount as may be necessary to avoid classification of the Award as a liability for financial accounting purposes). The Participant (or if applicable, permitted assigns, heirs and Designated Beneficiaries) may elect to satisfy any withholding obligation in respect of the Award (a) if approved by the Committee (i) through cash payment by the Participant, or (ii) through the surrender of Shares that the Participant already owns, or (b) through the withholding of vested Shares to which the Participant is otherwise entitled under the

Award (provided, however, such Shares under clause (b) may not be used to satisfy more than the Company’s maximum statutory withholding obligation or, if applicable, such lesser amount as may be necessary to avoid classification of the Award as a liability for financial accounting purposes); provided that any such election must be made on or before the date the amount of tax to be withheld is determinable and, once made, such election shall be irrevocable. The fair market value of the Shares to be withheld or surrendered will be deemed to be the Fair Market Value as of the date the amount of tax to be withheld is determinable.

Section 6. Non-Transferability of Award . The Award, or any portion thereof, is not transferable except as designated by the Participant by will or by the laws of descent and distribution or pursuant to a domestic relations order. Except as provided in the immediately preceding sentence, the Award shall not be assigned, transferred, pledged, hypothecated or otherwise disposed of by the Participant in any way whether by operation of law or otherwise, and shall not be subject to execution, attachment or similar process. Any attempt at assignment, transfer, pledge, hypothecation or other disposition of the Award contrary to the provisions hereof, or the levy of any attachment or similar process upon the Award, shall be null and void and without effect.

Section 7. Dividend Equivalents . The Participant shall receive additional RSUs representing the right to receive Shares equal in value (as of the applicable dividend or distribution payment date) to any dividends and distributions paid with respect to the number of Shares (other than dividends and distributions that may be issued with respect to Shares by virtue of any corporate transaction, to the extent adjustment is made pursuant to Section 3.4 of the Plan) underlying the Participant’s outstanding RSUs during the Restricted Period (“ Dividend Equivalents ”); provided , however , that no Dividend Equivalents shall be owed or provided to or for the benefit of the Participant with respect to record dates for such dividends or distributions occurring before the Grant Date or on or after the date, if any, on which the Participant has forfeited the RSUs. Dividend Equivalents shall be provided at the time the respective dividends or distributions are paid and shall be subject to the same restrictions, vesting and other terms and conditions applicable to the underlying RSUs.

Section 8. No Rights as Shareholder . The Participant shall not have any rights of a Shareholder with respect to the RSUs, including but not limited to, voting rights, prior to settlement of the RSUs pursuant to ‎Section 4(a) above.

Section 9. Heirs and Successors . This Award Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company’s assets or business. If any rights of the Participant or benefits distributable to the Participant under this Award Agreement have not been settled or distributed at the time of the Participant’s death, such rights shall be settled for and such benefits shall be distributed to the Designated Beneficiary in accordance with the provisions of this Award Agreement and the Plan. The “ Designated Beneficiary ” shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form as the Committee may require. The Participant’s designation of beneficiary may be amended or revoked from time to time by the Participant in accordance with any procedures established by the Committee. If a Participant fails to designate a beneficiary, or if the Designated Beneficiary

does not survive the Participant, any benefits that would have been provided to the Participant shall be provided to the legal representative of the estate of the Participant. If a Participant designates a beneficiary and the Designated Beneficiary survives the Participant but dies before the provision of the Designated Beneficiary’s benefits under this Award Agreement, then any benefits that would have been provided to the Designated Beneficiary shall be provided to the legal representative of the estate of the Designated Beneficiary.

Section 10. Administration . The authority to manage and control the operation and administration of this Award Agreement and the Plan shall be vested in the Committee, and the Committee shall have all powers with respect to this Award Agreement as it has with respect to the Plan. Any interpretation of this Award Agreement or the Plan by the Committee and any decision made by the Committee with respect to this Award Agreement or the Plan shall be final and binding on all persons.

Section 11. Plan Governs . Notwithstanding any provision of this Award Agreement to the contrary, this Award Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by the Participant from the Company. This Award Agreement shall be subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time. Notwithstanding any provision of this Award Agreement to the contrary, in the event of any discrepancy between the corporate records of the Company and this Award Agreement, the corporate records of the Company shall control.

Section 12. Not an Employment Contract . Neither the Award nor this Award Agreement shall confer on the Participant any rights with respect to continuance of employment or other service with the Company or a Subsidiary, nor shall they interfere in any way with any right the Company or a Subsidiary may otherwise have to terminate or modify the terms of the Participant’s employment or other service at any time.

Section 13. Amendment . Without limitation of ‎Section 16 and ‎Section 17 below, this Award Agreement may be amended in accordance with the provisions of the Plan, and may otherwise be amended in writing by the Participant and the Company without the consent of any other person.

Section 14. Governing Law . This Award Agreement, the Plan and all actions taken in connection herewith and therewith shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to principles of conflict of laws, except as superseded by applicable federal law.

Section 15. Validity . If any provision of this Award Agreement is determined to be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Award Agreement shall be construed and enforced as if such illegal or invalid provision had never been included herein.

Section 16. Section 409A Amendment .

(a) The Award is intended to be exempt from Code Section 409A and this Award Agreement shall be administered and interpreted in accordance with such intent. The

Committee reserves the right (including the right to delegate such right) to unilaterally amend this Award Agreement without the consent of the Participant in order to maintain an exclusion from the application of, or to maintain compliance with, Code Section 409A; and the Participant hereby acknowledges and consents to such rights of the Committee.

(b) Notwithstanding the foregoing, if the Award is determined to be subject to Code Section 409A as a result of the operation of ‎Section 3(b) above, then the special timing provisions of this section will apply. If the Participant is a Specified Employee (as defined below) at the time of a Termination of Service, no settlement of the Award shall occur before the date that is six (6) months after the date of Participant’s Termination of Service. Any settlement of an Award under this Agreement that would otherwise occur prior to the close of this six (6) month period shall occur within five (5) business days following the date which is six (6) months after the date of the Participant’s Termination of Service. If Participant is a Specified Employee during an Identification Period (as defined below), Participant shall be treated as a Specified Employee during the 12-month period that begins on the April 1 following the close of such Identification Period. For purposes of this Agreement, (i) “ Specified Employee ” shall mean a “key employee” (as defined in Code Section 416(i) without regard to paragraph (5) thereof), as determined by the Company during an Identification Period, and with respect to such determination , “compensation” shall mean the Participant ’s W-2 compensation as reported by the Company for the related Identification Period, and (ii) “ Identification Period ” shall mean each 12-month period ending on December 31 of each calendar year.

Section 17. Clawback . The Award and any amount or benefit received under the Plan shall be subject to potential cancellation, recoupment, rescission, payback or other action in accordance with the terms of any applicable Company or Subsidiary clawback policy (the “ Policy ”) or any applicable law, as may be in effect from time to time. The Participant hereby acknowledges and consents to the Company’s or a Subsidiary’s application, implementation and enforcement of (a) the Policy and any similar policy established by the Company or a Subsidiary that may apply to the Participant together with all other similarly situated participants, whether adopted prior to or following the date of this Award Agreement and (b) any provision of applicable law or regulation relating to cancellation, rescission, payback or recoupment of compensation, and agrees that the Company or a Subsidiary may take such actions as may be necessary to effectuate the Policy, any similar policy and applicable law, without further consideration or action.

Section 18. Confidentiality .

(a) The Participant acknowledges that the nature of the Participant’s employment shall require that the Company produce and allow the Participant access to records, data, trade secrets and information that are not available to the public regarding the Company and its subsidiaries and affiliates (“ Confidential Information ”). The Participant shall hold in confidence and not directly or indirectly disclose any Confidential Information to third parties unless: (i) disclosure becomes reasonably necessary in connection with the Participant’s performance of the Participant’s duties of employment with the Company or its subsidiaries or affiliates; (ii) the Confidential Information lawfully becomes available to the public from other sources; (iii) the Participant is authorized in writing by the Company to disclose the Confidential

Information; or (iv) the Participant is required to make disclosure of the Confidential Information by law or pursuant to the authority of any administrative agency or judicial body. All Confidential Information and other records, files, documents, and other materials or copies thereof relating to the business of the Company or any of its subsidiaries or affiliates that the Participant prepares or uses shall be the sole property of the Company. The Participant’s access to and use of the Company’s computer systems, networks and equipment, and all of the Company information contained therein, shall be restricted to legitimate business purposes on behalf of the Company; any other access to or use of such systems, network and equipment is without authorization and is prohibited. The restrictions contained in this Section 18 shall extend to any personal computers or other electronic devices of the Participant that are used for business purposes relating to the Company. The Participant shall not transfer any Company information to any personal computer or other electronic device that is not otherwise used for any business purpose relating to the Company. The Participant shall promptly return all originals and copies of Confidential Information and other records, files, documents and other materials to the Company if the Participant’s employment with the Company is terminated for any reason.

(b) The Participant acknowledges and agrees that, notwithstanding any provisions in this Award Agreement or any Company policy applicable to the unauthorized use or disclosure of trade secrets, the Participant is hereby notified that, pursuant to the Defend Trade Secrets Act of 2016 (Pub. Law 114-153), the Participant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, municipal or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law. The Participant also may not be held so liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, individuals who file a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order. Nothing in this Award Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Nothing in this Award Agreement shall be construed to authorize, or limit liability for, an act that is otherwise prohibited by law, such as the unlawful access of material by unauthorized means.

(c) The Participant and the Company acknowledge and agree that nothing contained in this Award Agreement, or in any other contract or agreement with or policy of the Company or any of its Subsidiaries, shall limit the Participant’s ability to file, pursuant to any applicable whistleblower statute or program (each, a “ Whistleblower Program ”), a charge or complaint with any federal, state, municipal or local governmental agency or commission (“ Government Agencies ”). The Participant and the Company further understand and agree that this Award Agreement, and any other any other contact or agreement with or policy of the Company or any of its Subsidiaries, shall not limit (i) the Participant’s ability to communicate or cooperate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing information,

without notice to the Company, or (ii) the Participant’s right to receive financial incentive pursuant to a Whistleblower Program for information provided to any Government Agencies.

Section 19. Non-Solicitation Covenants . As an essential ingredient and in consideration of the Participant’s employment by the Company, the Participant’s receipt of this Award and the Participant’s opportunity to participate in the Plan or another equity incentive plan maintained by the Company, the Participant shall not, during the Participant’s employment with the Company or any of its subsidiaries or affiliates and for a period of one (1) year after termination of the Participant’s employment with the Company (and its subsidiaries or affiliates) for any reason (the “ Restrictive Period ”) and regardless of when such termination of employment occurs, do any of the following (the “ Restrictive Covenant ”): directly or indirectly, for the Participant or any bank, savings and loan association, credit union or similar financial institution (a “ Financial Institution ”): (a) induce or attempt to induce any officer of the Company or any of its subsidiaries or affiliates, or any employee who previously reported to the Participant, to leave the employ of the Company or any of its subsidiaries or affiliates; (b) in any way interfere with the relationship between the Company or any of its subsidiaries or affiliates and any such officer or employee; (c) employ, or otherwise engage as an employee, independent contractor or otherwise, any such officer or employee; or (d) induce or attempt to induce any customer, supplier, licensee or business relation of the Company or any of its subsidiaries and affiliates to cease doing business with the Company or any of its subsidiaries or affiliates or in any way interfere with the relationship between the Company or any of its subsidiaries or affiliates and any of their respective customers, suppliers, licensees or business relations where the Participant had personal contact with, or has accessed Confidential Information in the preceding twelve (12) months with respect to, such customers, suppliers, licensees or business relations. Notwithstanding the foregoing, any party identified on Schedule A hereto shall be excluded from the scope of the Restrictive Covenant. The Participant acknowledges and agrees that the Restrictive Covenant exist independently of and is in addition to (and is not in lieu of and does not limit or modify) any other agreements, covenants and obligations by which the Participant may be bound by or to which the Participant may be subject by contract, or by applicable law or regulation, with respect to non-solicitation, non-competition or other restrictions.

Section 20. Remedies for Breach . The Participant has reviewed the provisions of this Award Agreement with legal counsel, or has been given adequate opportunity to seek such counsel, and the Participant acknowledges that the Restrictive Covenants contained herein are reasonable with respect to their duration and scope. The Participant further acknowledges that the restrictions contained in this Award Agreement are reasonable and necessary for the protection of the legitimate business interests of the Company, that they create no undue hardships, that any violation of these restrictions would cause substantial injury to the Company and its interests, that the Company would not have agreed to enter into this Award Agreement, or otherwise allow the Participant an opportunity to participate in the Plan or any other equity incentive plan maintained by the Company, without receiving Participant’s agreement to be bound by the Restrictive Covenants and that such Restrictive Covenants were a material inducement to the Company to enter into this Award Agreement, or otherwise allow the Participant an opportunity to participate in the Plan or any other equity incentive plan maintained by the Company. During the Restrictive Period, the Company shall have the right to

communicate the existence and terms of this Award Agreement to any third party with whom the Participant may seek or obtain future employment or other similar arrangement. In addition, in the event of any violation or threatened violation of the restrictions contained in this Award Agreement, the Company, in addition to and not in limitation of, any other rights, remedies or damages available to the Company under this Award Agreement or the Plan or otherwise at law or in equity, shall be entitled to preliminary and permanent injunctive relief to prevent or restrain any such violation by the Participant and any and all persons directly or indirectly acting for or with him, as the case may be. If the Participant violated the Restrictive Covenant and the Company brings legal action for injunctive or other relief, the Company shall not, as a result of time involved in obtaining such relief, be deprived of the benefit of the full period of the Restrictive Covenant. Accordingly, the Restrictive Covenant shall be deemed to have the duration specified herein computed from the date the relief is granted but reduced by the time between the period when the Restrictive Period began to run and the date of the first violation of the Restrictive Covenant by the Participant.

IN WITNESS WHEREOF , the Company has caused this Award Agreement to be executed in its name and on its behalf, and the Participant acknowledges understanding and acceptance of, and agrees to, the terms of this Award Agreement, all as of the Grant Date.

Old Second Bancorp, Inc.

By:

Print Name:

Title:

Participant

Print Name:

Schedule A

Parties Excluded from Scope of Restrictive Covenant

Exhibit 4.9

old second bancorp, inc.

2019 Equity Incentive Plan

Director Time Vesting Restricted Stock Unit Award Agreement

Section 2. Terms of Restricted Stock Unit Award . The following words and phrases relating to the Award have the following meanings:

(a) The “ Participant ” is [●].

(b) The “ Grant Date ” is [●].

Except for words and phrases otherwise defined in this Award Agreement, any capitalized word or phrase in this Award Agreement has the meaning set forth in the Plan.

Section 3. Restricted Period .

Installment	Restricted Period will end on:
100% of RSUs	3 rd anniversary of Grant Date

(b) Notwithstanding the foregoing provisions of this ‎Section 3 , the Restricted Period for all the RSUs shall cease immediately and such RSUs shall become fully vested immediately upon the Participant’s Termination of Service due to the Participant’s Retirement, Disability or death. For purposes of this Award Agreement, “ Retirement ” shall mean a Termination of Service upon attaining the mandatory retirement age set forth in the Company’s bylaws or other policy of the Board.

Section 4. Settlement of RSUs . Delivery of Shares or other amounts under this Award Agreement and the Plan shall be subject to the following:

as may be necessary to avoid classification of the Award as a liability for financial accounting purposes); provided that any such election must be made on or before the date the amount of tax to be withheld is determinable and, once made, such election shall be irrevocable. The fair market value of the Shares to be withheld or surrendered will be deemed to be the Fair Market Value as of the date the amount of tax to be withheld is determinable.

designates a beneficiary and the Designated Beneficiary survives the Participant but dies before the provision of the Designated Beneficiary’s benefits under this Award Agreement, then any benefits that would have been provided to the Designated Beneficiary shall be provided to the legal representative of the estate of the Designated Beneficiary.

Section 12. No Right to Continued Service . This Award shall not impose upon the Company or any Subsidiary any obligation to retain the Participant as a director or in any other capacity for any given period or upon any specific terms. The Company or any Subsidiary may at any time remove the Participant as a director, free from any liability or claim under the Plan or this Agreement, unless otherwise expressly provided in any written agreement with the Participant.

Section 16. Section 409A Amendment .

(a) The Award is intended to be exempt from Code Section 409A and this Award Agreement shall be administered and interpreted in accordance with such intent. The Committee reserves the right (including the right to delegate such right) to unilaterally amend

this Award Agreement without the consent of the Participant in order to maintain an exclusion from the application of, or to maintain compliance with, Code Section 409A; and the Participant hereby acknowledges and consents to such rights of the Committee.

Section 18. Confidentiality .

(a) The Participant acknowledges that the nature of the Participant’s service as a director shall require that the Company produce and allow the Participant access to records, data, trade secrets and information that are not available to the public regarding the Company and its subsidiaries and affiliates (“ Confidential Information ”). The Participant shall hold in confidence and not directly or indirectly disclose any Confidential Information to third parties unless: (i) disclosure becomes reasonably necessary in connection with the Participant’s performance of the Participant’s duties as a director of the Company or its subsidiaries or affiliates; (ii) the Confidential Information lawfully becomes available to the public from other sources; (iii) the Participant is authorized in writing by the Company to disclose the Confidential Information; or (iv) the Participant is required to make disclosure of the Confidential Information

by law or pursuant to the authority of any administrative agency or judicial body. All Confidential Information and other records, files, documents, and other materials or copies thereof relating to the business of the Company or any of its subsidiaries or affiliates that the Participant prepares or uses shall be the sole property of the Company. The Participant’s access to and use of the Company’s computer systems, networks and equipment, and all of the Company information contained therein, shall be restricted to legitimate business purposes on behalf of the Company; any other access to or use of such systems, network and equipment is without authorization and is prohibited. The restrictions contained in this Section 18 shall extend to any personal computers or other electronic devices of the Participant that are used for business purposes relating to the Company. The Participant shall not transfer any Company information to any personal computer or other electronic device that is not otherwise used for any business purpose relating to the Company. The Participant shall promptly return all originals and copies of Confidential Information and other records, files, documents and other materials to the Company if the Participant’s employment with the Company is terminated for any reason.

without notice to the Company, or (ii) the Participant’s right to receive financial incentive pursuant to a Whistleblower Program for information provided to any Government Agencies.

Section 19. Non-Solicitation Covenants . As an essential ingredient and in consideration of the Participant’s service as a director of the Company, the Participant’s receipt of this Award and the Participant’s opportunity to participate in the Plan or another equity incentive plan maintained by the Company, the Participant shall not, during the Participant’s term as a director with the Company or any of its subsidiaries or affiliates and for a period of one (1) year after termination of the Participant’s service as a director with the Company (and/or its subsidiaries or affiliates) for any reason (the “ Restrictive Period ”) and regardless of when such termination of service occurs, do any of the following (the “ Restrictive Covenant ”): directly or indirectly, for the Participant or any bank, savings and loan association, credit union or similar financial institution (a “ Financial Institution ”): (a) induce or attempt to induce any officer of the Company or any of its subsidiaries or affiliates, or any employee who previously reported to the Participant, to leave the employ of the Company or any of its subsidiaries or affiliates; (b) in any way interfere with the relationship between the Company or any of its subsidiaries or affiliates and any such officer or employee; (c) employ, or otherwise engage as an employee, independent contractor or otherwise, any such officer or employee; or (d) induce or attempt to induce any customer, supplier, licensee or business relation of the Company or any of its subsidiaries and affiliates to cease doing business with the Company or any of its subsidiaries or affiliates or in any way interfere with the relationship between the Company or any of its subsidiaries or affiliates and any of their respective customers, suppliers, licensees or business relations where the Participant had personal contact with, or has accessed Confidential Information in the preceding twelve (12) months with respect to, such customers, suppliers, licensees or business relations. Notwithstanding the foregoing, any party identified on Schedule A hereto shall be excluded from the scope of the Restrictive Covenant. The Participant acknowledges and agrees that the Restrictive Covenant exist independently of and is in addition to (and is not in lieu of and does not limit or modify) any other agreements, covenants and obligations by which the Participant may be bound by or to which the Participant may be subject by contract, or by applicable law or regulation, with respect to non-solicitation, non-competition or other restrictions.

Old Second Bancorp, Inc.

By:

Print Name:

Title:

Participant

Print Name:

Schedule A

Parties Excluded from Scope of Restrictive Covenant

Exhibit 5.1

C:/USERS/BCRAFTON/APPDATA/LOCAL/MICROSOFT/WINDOWS/INETCACHE/CONTENT.WORD/NM 2C PMS HORIZONTAL LOGO (2).JPG

NELSON MULLINS RILEY & SCARBOROUGH LLP

ATTORNEYS AND COUNSELORS AT LAW

104 South Main Street | Ninth Floor

Greenville, SC 29601

T 864.250.2300 F 864.232.2925

nelsonmullins.com

May 29, 2019

Old Second Bancorp, Inc.

37 South River Street

Aurora, Illinois 60507

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Old Second Bancorp, Inc. (the “Company”) in connection with the preparation and filing of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), covering the offering of up to 600,000 shares (the “Shares”) of the Company’s common stock, par value $1.00 per share, issuable by the Company under the Old Second Bancorp, Inc. 2019 Equity Incentive Plan (the “2019 Plan”). This opinion is furnished pursuant to the requirement of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined corporate records, certificates of public officials and officers of the Company, and other documents and records as we have deemed necessary for purposes of this opinion. In our examination, we have assumed the completeness and authenticity of any document submitted to us as an original, the completeness and conformity to the originals of any document submitted to us as a copy, the authenticity of the originals of such copies, the genuineness of all signatures, and the legal capacity and mental competence of natural persons.

For purposes of this opinion, we have relied without any independent verification upon factual information supplied to us by the Company, on factual information included in the Company’s filings with the Commission and on the Shares being reserved for future issuance under the 2019 Plan. We have assumed without investigation that there has been no relevant change or development between the dates as of which the information cited in the preceding sentences was given or filed and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosure necessary to prevent such information from being misleading.

Based on the foregoing, assuming that the Shares are authorized and issued in accordance with the 2019 Plan and a valid award agreement entered into in accordance therewith, and that the Company has received the authorized consideration for the issuance of the Shares (in an amount not less than the par value thereof), we are of the opinion that the

North Carolina | South Carolina | Tennessee | West Virginia

Old Second Bancorp, Inc.

Page 2

Shares, when issued and delivered as described in the Registration Statement, will be validly issued, fully paid, and nonassessable.

Our opinion expressed above is subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors’ rights generally; (ii) general principals of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); (iii) public policy considerations which may limit the rights of parties to obtain certain remedies; and (iv) any laws except the Delaware General Corporation Law. Our advice on any legal issue addressed in this letter represents our opinion as to how that issue would be resolved were it to be considered by the highest court in the jurisdiction which enacted such law. The manner in which any particular issue would be treated in any actual court case would depend in part on facts and circumstances particular to the case, and this letter is not intended to guarantee the outcome of any legal dispute which may arise in the future.

This opinion is being rendered to be effective as of the effective date of the Registration Statement, and we hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. This consent shall not be deemed to be an admission that this firm is within the category of persons whose consent is required under Section 7 of the Securities Act or the regulations promulgated pursuant to the Securities Act.

This opinion is limited to the laws of the State of Delaware and no opinion is expressed as to the laws of any other jurisdiction. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the issuance and sale of any of the Shares. This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.

Very Truly Yours,

/s/ Nelson Mullins Riley & Scarborough LLP

NELSON MULLINS RILEY & SCARBOROUGH LLP

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Old Second Bancorp, Inc. of our reports dated March 6, 2019 relating to the financial statements and effectiveness of internal control over financial reporting, which appear in Old Second Bancorp Inc.’s Annual Report on Form 10-K for the year ended December 31, 2018.

/s/ Plante & Moran PLLC

Chicago, Illinois

May 29, 2019