SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FIRST MIDWEST BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3161078
(State of Incorporation) (I.R.S. Employer Identification No.)
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FIRST MIDWEST BANCORP, INC.
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
Mr. Donald J. Swistowicz
Executive Vice President
First Midwest Bancorp, Inc.
300 Park Boulevard
Suite 405
Itasca, Illinois 60143-0459
(630) 875-7450
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of securities to Amount to be offering price per aggregate offering registration
be registered (1) registered (2) share (3) price (3) fee
----------------------- --------------- ------------------ ------------------ ------------
Common Stock,
$.01 par value 25,000 $39.45 $986,250 $298.86
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(1) The Registrant is also registering preferred share purchase rights which are evidenced by the certificates for the Common Stock being registered in a ratio of one Preferred Share Purchase Right for each share of Common Stock.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration Statement also covers an indeterminate number of shares as may be issuable to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(3) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h)(1) based upon the aggregate of (a) the weighted average option price per share for each of the 12,625 shares covered by options outstanding under the Plan on September 4, 1998 and (b) the averages of the high and low prices for the Common Stock reported on the NASDAQ National Market System on September 4, 1998.
FIRST MIDWEST BANCORP, INC.
FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUSES
The documents containing the information required by this section will be given to persons eligible to participate in the First Midwest Bancorp, Inc. Non- Employee Directors' Stock Option Plan and are not required to be filed with the Commission as a part of this Registration Statement.
FIRST MIDWEST BANCORP, INC.
FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the "Commission") by the Registrant (File No. 0-10967) pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and the Amendment on Form 10-K/A thereto;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998;
(3) The Registrant's Current Reports on Form 8-K dated January 23, 1998, April 28, 1998, May 28 1998, June 22, 1998, July 1, 1998 and August 20, 1998; and
(4) The description of the Common Stock, $.01 par value, and Preferred Stock purchases rights associated with the Common Stock of the Registrant, no par value, as contained in the Registrant's Registration Statement on Form 8-A, dated February 17, 1989, as amended by subsequently filed reports on Form 8-A.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold are
incorporated by reference in the Registration Statement and are a part hereof
from the date of filing of such documents. Any statements contained 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 herein (or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, a corporation may indemnify any person who was or is a
party or is threatened to be made a party to an action (other than an action by
or in the right of the corporation) by reason of his service as a director or
officer of the corporation, or his service, at the corporation's request, as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorney's fees) that are actually and reasonably
incurred by him ("Expenses"), and judgements, fines and amounts paid in
settlement that are actually and reasonably incurred by him, in connection with
the defense or settlement of such action, provided that he acted in good faith
and in a matter he reasonably believed to be in or not opposed to the
corporations' best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Although Delaware law permits a corporation to indemnify any person referred to
above against Expenses in connection with the defense or settlement of an action
by or in the right of the corporation, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the corporation's
best interests, if such person has been judged liable to the corporation,
indemnification is only permitted to the extent that the Court of Chancery (or
the court in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity for such
Expenses as the court deems proper. The determination as to whether a person
seeking indemnification has met the required standard of conduct is to be made
(1) by a majority vote of a quorum of disinterested members of the board of
directors, or (2) by independent legal counsel in a written opinion, if such a
quorum does not exist or if the disinterested directors so direct, or (3) by the
stockholders. The General Corporation Law of the State of Delaware also
provides for mandatory indemnification of any director, officer, employee or
agent against Expenses to the extent such person has been successful in any
proceeding covered by the statute. In addition, the General Corporation Law of
the State of Delaware provides the general authorization of advancement of a
director's or officer's litigation expenses in lieu of requiring the
authorization of such advancement by the board of directors in specific cases,
and that indemnification and advancement of expenses provided by the statute
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement or otherwise.
The Registrant's Amended and Restated By-laws and Restated Certificate of Incorporation provide for indemnification of the Registrant's directors, officers, employees and other agents to the fullest extent not prohibited by Delaware law.
The Registrant has entered into agreements to indemnify its directors and executive officers, in addition to the indemnification provided for in the Registrant Amended and Restated By-laws and Restated Certificate of Incorporation. These agreements, among other things, will indemnify the Registrant's directors and executive officers for all direct and indirect expenses and costs (including, without limitation, all reasonable attorneys' fees and related disbursements, other out of pocket costs and reasonable compensation for time spent by such persons for which they are not otherwise compensated by the Registrant or any third party) and liabilities of any type whatsoever (including, but not limited to, judgements, fines and settlement fees) actually and reasonably incurred by such person in connection with either the investigation, defense, settlement or appeal of any threatened, pending or completed action suit or other proceeding, including any action by or in the right of the Registrant, arising out of such person's services as a director, officer, employee or other agent of the Registrant, any subsidiary of the Registrant or any other company or enterprise to which the person provides services at the request of the Registrant. The Registrant believes that these provisions and agreements are necessary to attract and retain talented and experienced directors and officers.
The Registrant's Restated Certificate of Incorporation is consistent with
Section 102(b)(7) of the Delaware General Corporation Law, which generally
permits a corporation to include a provision limiting the personal liability of
a director in the corporation's certificate of incorporation. With limitations,
this provision eliminates the personal liability of the Registrant's directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, this provision does not eliminate
director liability: (1) for breaches of duty of loyalty to the Registrant and
its stockholders; (2) for acts of omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) for transactions from
which a director derives improper personal benefit; or (4) under Section 174 of
the
Delaware General Corporation Law ("Section 174"). Section 174 makes directors personally liable for unlawful dividends and stock repurchases or redemptions and expressly sets forth a negligence standard with respect to such liability. While this provision protects the directors from awards for monetary damages for breaches of their duty of care, it does not eliminate their duty of care. The limitations in this provision have no effect on claims arising under the securities laws.
The Registrant maintains liability insurance for the benefit of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits filed herewith or incorporated by reference herein are set forth in the Exhibit Index filed as part of this registration statement.
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 intimal 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 that is
incorporated by reference in this 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 provisions set forth or described in Item 6 of this Registration Statement, 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 of 1933 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 of 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 itself 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 1993, 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 Village of Itasca, State of Illinois, on this 9th day September, 1998.
FIRST MIDWEST BANCORP, INC.
POWER OF ATTORNEY
The undersigned officers and directors of First Midwest Bancorp, Inc., do hereby constitute and appoint Robert P. O'Meara and Donald J. Swistowicz, and either one of them, as their attorneys-in-fact with power and authority to do any and all acts and things and to execute any and all instruments which said attorneys-in-fact, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to the Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereto, and each of the undersigned hereby ratifies and confirms all that said attorneys-in-fact or any of them shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1993, this Registration Statement has been signed on this 9/th/ day September, 1998 by the following persons in the capacities indicated.
Signatures Capacity
--------------------------------- -------------------------------------
ROBERT P. O'MEARA
--------------------------------- Chairman of the Board of Directors
Robert P. O'Meara and Chief Executive Officer
ANDREW B. BARBER
--------------------------------- Honorary Chairman of the Board of
Andrew B. Barber Directors
JOHN M. O'MEARA
--------------------------------- President, Chief Operating Officer
John M. O'Meara and Director
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DONALD J. SWISTOWICZ
--------------------------------- Executive Vice President, Chief
Donald J. Swistowicz Financial and Accounting Officer
VERNON A. BRUNNER
--------------------------------- Director
Vernon A. Brunner
BRUCE S. CHELBERG
--------------------------------- Director
Bruce S. Chelberg
WILLIAM J. COWLIN
--------------------------------- Director
William J. Cowlin
O. RALPH EDWARDS
--------------------------------- Director
O. Ralph Edwards
JOSEPH W. ENGLAND
--------------------------------- Director
Joseph W. England
BROTHER JAMES GAFFNEY, FCS
--------------------------------- Director
Brother James Gaffney, F.C.S.
THOMAS M. GARVIN
--------------------------------- Director
Thomas M. Garvin
JACK PAYAN
--------------------------------- Director
Jack Payan
JOHN L. STERLING
--------------------------------- Director
John L. Sterling
J. STEPHEN VANDERWOUDE
--------------------------------- Director
J. Stephen Vanderwoude
RICHARD T. WOJCIK
--------------------------------- Director
Richard T. Wojcik
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EXHIBIT INDEX
Sequential
Exhibit Page
Number Description of Documents Number
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4.1 Amended and Restated Rights Agreement, Form of Rights Certificate and
Designation of Series A Preferred Stock of the Registrant, dated November
15, 1995 is incorporated herein by reference to Exhibits (1) through (3) of -
the Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on November 21, 1995.
4.2 First Amendment to Rights Agreement, dated June 18, 1997, is -
incorporated herein by reference to Exhibit 4 of the Registrant's
Amendment No. 2 to the Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 30, 1997.
5 Opinion of Vedder, Price, Kaufman & Kammholz. 9
23.1 Consent of Vedder, Price, Kaufman and Kammholz (contained in the
opinion filed as Exhibit 5). 9
23.2 Consent of Ernst & Young LLP. 10
23.3 Consent of KPMG Peat Marwick LLP. 11
23.4 Consent of Grant Thornton LLP. 12
24 Power of Attorney (set forth on the signature page hereof). 6
99 Non-Employee Directors' Stock Option Plan, is incorporated herein by
reference to Exhibit 10.4 to the Registrant's Annual Report on Form 10-K
dated December 31, 1997. -
99.1 Form of Letter Agreement for Non-Employee Directors' Stock Options
Grant executed between the Registrant and non-employee directors of the
Registrant pursuant to the Registrant's Non-Employee Directors' Stock
Option Plan, is incorporated herein by reference to Exhibit 10.9 to the
Registrant's Annual Report on Form 10-K dated December 31, 1997. -
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Vedder, Price, Kaufman & Kammholz 222 North LaSalle Street Chicago, IL 60601
September 9, 1998
First Midwest Bancorp, Inc.
300 Park Blvd., Suite 405
P.O. Box 459
Itasca, IL 60143-0459
Gentlemen:
We are acting as special counsel to First Midwest Bancorp, Inc. (the "Corporation") in connection with the filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") relating to up to 25,000 shares of the Corporation's common stock, $.01 par value, including preferred share purchase rights (collectively, "Common Stock"). The Common Stock is issuable under the Corporation's Non-Employee Directors' Stock Option Plan (the "Plan"). The opinion set forth below relates only to the Common Stock covered by the Registration Statement.
In connection with our opinion below, we have examined originals, or copies, certified or otherwise identified to our satisfaction, of the Registration Statement, the Certificate of Incorporation and the By-laws of the Corporation, as amended, as well as such other corporate records, documents and other papers as we deemed necessary to examine for purposes of this opinion. In making such examination, we have assumed as true, without independent review or verification, facts certified to us by certain executive officers of the Corporation and by public officials.
Based on the foregoing, we are of the opinion that the 25,000 shares of Common Stock when issued by the Corporation in connection with the Plan will be duly authorized, validly issued, fully paid and non-assessable shares of Common Stock, provided that such shares are issued in accordance with the terms of the Plan and awards made as contemplated thereunder.
The opinion expressed herein is limited to the laws and judicial practices of the State of Delaware currently in effect.
We hereby consent to filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we come under the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or under the rules and regulators of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/VEDDER, PRICE, KAUFMAN & KAMMHOLZ |
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the First Midwest Bancorp, Inc. Non-Employee Directors' Stock Option Plan of our report dated January 20, 1998, with respect to the 1997 consolidated financial statements of First Midwest Bancorp, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
September 8, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
First Midwest Bancorp, Inc.
We consent to the incorporation by reference in the registration statement on Form S-8 of First Midwest Bancorp, Inc. pertaining to the First Midwest Bancorp, Inc. Non-Employee Directors' Stock Option Plan of our report dated January 19, 1996, relating to the consolidated statements of income, changes in stockholders' equity and cash flows of First Midwest Bancorp, Inc. and subsidiaries for the year ended December 31, 1995, which report appears in the December 31, 1997 annual report on Form 10-K of First Midwest Bancorp, Inc.
KPMG PEAT MARWICK LLP
Chicago, Illinois
September 8, 1998
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We have issued our report dated May 23, 1997, on the consolidated financial statements of SparBank, Incorporated and Subsidiary as of December 31, 1996 and for each of the two years in the period ended December 31, 1996, included in the Annual Report on Form 10-K of First Midwest Bancorp, Inc. for the year ended December 31, 1997. We hereby consent to the incorporation by reference of our report in the First Midwest Bancorp Registration Statement on Form S-8 pertaining to the First Midwest Bancorp, Inc. Non-Employee Directors' Stock Option Plan
/s/ GRANT THORNTON LLP
Chicago, Illinois
September 4, 1998
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