|
As filed with the Securities and Exchange Commission on June 24, 2014
|
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
|
|
(I.R.S. Employer
|
|
incorporation or organization)
|
|
Identification No.)
|
37 South River Street
Aurora, Illinois 60506-4172
(Address of principal executive offices)
OLD SECOND BANCORP, INC. 2014 EQUITY INCENTIVE PLAN
(Full title of the plan)
William B. Skoglund
President and Chief Executive Officer
Old Second Bancorp, Inc.
37 South River Street
Aurora, Illinois 60506-4172
(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, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer
o
|
|
Accelerated filer
o
|
|
Non-accelerated filer
o
(Do not check if a smaller reporting company)
|
|
Smaller reporting company
x
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
Title of Securities
to be Registered
|
|
Amount to be
Registered(1)(2)
|
|
Proposed Maximum
Offering Price
per Share(2)
|
|
Proposed Maximum
Aggregate
Offering Price(1)(2)
|
|
Amount of Registration
Fee(2)
|
|
|
Common Stock, $1.00 par value
|
|
375,000 shares
|
|
$
|
4.77
|
|
$
|
1,788,750.00
|
|
$
|
231.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement also registers such indeterminate number of additional shares as may be issuable under the Plans in connection with stock splits, stock dividends or similar transactions.
(2)
Estimated pursuant to Rule 457(h) under the Securities Act, solely for the purpose of calculating the registration fee, based on the average of the high and low price for the registrant’s common stock as reported on the Nasdaq Global Select Market on June 20, 2014.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
Plan Information.
The documents containing the information specified in Part I (“Information Required in the Section 10(a) Prospectus”) will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act of 1933 (the “Securities Act”). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “SEC”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference herein pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2.
Registrant Information and Employee Plan Annual Information.
Old Second Bancorp, Inc. (the “Registrant”) will provide participants of the Old Second Bancorp, Inc. 2014 Equity Incentive Plan (the “Plan”), upon written or oral request and without charge, a copy of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are incorporated by reference in the Section 10(a) prospectus, and all documents required to be delivered to employees pursuant to Rule 428(b) under the Securities Act. Requests for such documents should be directed to Old Second Bancorp, Inc., 37 South River Street, Aurora, Illinois 60506-4172, Attention: J. Douglas Cheatham, telephone number (630) 906-5484.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the SEC are incorporated herein by reference:
(a)
The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the SEC on February 26, 2014 (SEC File No. 0-10537);
(b)
The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed with the SEC on May 13, 2014 (SEC File No. 0-10537);
(c)
The Registrant’s Current Reports on Form 8-K (SEC File No. 0-10537) filed with the SEC on January 15, 2014, January 22, 2014 (except for the information under Item 2.02 thereof), January 23, 2014, March 26, 2014, April 4, 2014, April 8, 2014 (except for information under Item 7.01 thereof), April 11, 2014 (except for information under Item 7.01 thereof), April 15, 2014, April 23, 2014 (except for information under Item 2.02 thereof), May 2, 2014, May 20, 2014 (except for information under Item 7.01 thereof) and May 22, 2014; and
2
(d)
The description of the Registrant’s Common Stock included in the Registrant’s Registration Statement on Form S-1 (SEC File No. 01-10537) filed with the SEC on January 17, 2014, as amended February 27, 2014, March 26, 2014 and April 1, 2014 and all amendments or reports filed for the purpose of updating such description and the description of preferred share purchase rights included in the Registrant’s Form 8-A/A filed with the SEC on September 13, 2012 (SEC File No. 0-10537)
Each document or report subsequently filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered by this Registration Statement have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement from the date of filing of such document or report;
provided, however,
that documents or information deemed to have been furnished and not filed in accordance with the rules of the SEC shall not be deemed incorporated by reference in this Registration Statement.
Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus which is a part hereof 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 such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement or the prospectus which is a part hereof.
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 102(b)(7) of the Delaware General Corporation Law (the “DGCL”), generally permits a company to include a provision limiting the personal liability of a director in the company’s restated certificate of incorporation. With limitations, this provision eliminates the personal liability of directors to the company 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 the duty of loyalty to the company and its stockholders; (2) for acts or 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 DGCL (“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 federal securities laws.
3
In accordance with the DGCL, Article VIII of the Registrant’s Certificate of Incorporation provides as follows:
The Corporation shall, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, indemnify all persons whom it may indemnify pursuant thereto.
Section 8.8 of the Registrant’s Bylaws further provides as follows:
(a)
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 (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, if he acted in good faith and in a manner he 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 his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere
or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner that he 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 reasonable cause to believe that his conduct was unlawful.
(b)
The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation, unless and only to the extent that the Court of Chancery of the state of incorporation or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses that the Court of Chancery of the state of incorporation or such other court shall deem proper.
(c)
To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraphs (a) and (b), or in defense of any claims, issue or matter therein, he shall be indemnified
4
against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
(d)
Any indemnification under paragraph (a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (a) and (b). Such determination shall be made:
i.
By the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or
ii.
If such quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or
iii.
By the stockholders.
(e)
Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this paragraph.
(f)
The indemnification provided by this Section 8.8 shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
The Registrant also carries Directors’ and Officers’ liability insurance in the amount of $15 million.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8.
Exhibits.
See Exhibit Index.
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:
5
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however,
that provisions (i) and (ii) of this undertaking are inapplicable if the information to be filed thereunder is contained in period reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act and incorporated by reference in this Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s Annual Report pursuant to Section 13(a) or 15(d) of the Exchange Act 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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.
6
SIGNATURES
In accordance with 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 of filing on Form S-8 and have duly caused this Registration Statement to be signed on their behalf by the undersigned, thereunder duly authorized, in the City of Aurora, State of Illinois, on June 24, 2014.
|
|
OLD SECOND BANCORP, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ William B. Skoglund
|
|
|
|
William B. Skoglund
|
|
|
|
Chairman of the Board and Chief Executive Officer
|
|
|
|
|
|
|
By:
|
/s/ J. Douglas Cheatham
|
|
|
|
J. Douglas Cheatham
|
|
|
|
Executive Vice President and Chief Financial Officer
|
7
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints each of William B. Skoglund and J. Douglas Cheatham, or either of them, his true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, to sign on his behalf, individually and in each capacity stated below, all amendments and post-effective amendments to this registration statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as each might or could do in person, hereby ratifying and confirming each act that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated below on June 24, 2014.
|
/s/ William B. Skoglund
|
|
/s/ J. Douglas Cheatham
|
|
William B. Skoglund
Chairman of the Board, President and Chief Executive Officer (principal executive officer)
|
|
J. Douglas Cheatham
Executive Vice President and Chief Financial Officer, Director (principal financial officer and principal account officer)
|
|
|
|
|
|
/s/ Edward Bonifas
|
|
/s/ James L. Eccher
|
|
Edward Bonifas
Director
|
|
James L. Eccher
Executive Vice President and Chief Operating Officer, Director
|
|
|
|
|
|
/s/ Barry Finn
|
|
/s/ William J. Kane
|
|
Barry Finn
Director
|
|
William J. Kane
Director
|
|
|
|
|
|
/s/ John Ladowicz
|
|
/s/ William J. Meyer
|
|
John Ladowicz
Director
|
|
William J. Meyer
Director
|
|
|
|
|
|
/s/ Gerald Palmer
|
|
/s/ James Carl Schmitz
|
|
Gerald Palmer
Director
|
|
James Carl Schmitz
Director
|
|
|
|
|
|
/s/ Duane Suits
|
|
|
|
Duane Suits
Director
|
|
|
8
EXHIBIT INDEX
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Specimen common stock certificate of Old Second Bancorp, Inc. (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Form S-1 filed on January 17, 2014)
|
|
|
|
|
|
4.2
|
|
Old Second Bancorp, Inc. 2014 Equity Incentive Plan (incorporated herein by reference to Appendix A to the Registrant’s definitive proxy statement on Form DEF14A filed on April 21, 2014)
|
|
|
|
|
|
4.3*
|
|
Form of Restricted Stock Award Agreement
|
|
|
|
|
|
4.4*
|
|
Form of Restricted Stock Unit Award Agreement
|
|
|
|
|
|
5.1*
|
|
Opinion regarding legality of shares of Old Second Bancorp, Inc. common stock
|
|
|
|
|
|
23.1*
|
|
Consent of Independent Registered Public Accounting Firm
|
|
|
|
|
|
23.2*
|
|
Consent of General Counsel (included in Exhibit 5.1)
|
|
|
|
|
|
24.1*
|
|
Power of Attorney (included in the signature page hereto)
|
9
Exhibit 4.3
OLD SECOND BANCORP, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
The Participant specified below is hereby granted a restricted stock award (the “
Award
”) by
OLD SECOND BANCORP, INC.
, a Delaware corporation (the “
Company
”), under the
OLD SECOND BANCORP, INC. 2014 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 Award Agreement (“
Award Agreement
”).
Section 1.
Award
.
The Company hereby grants to the Participant the Award of restricted stock, which represents the right of the Participant to enjoy the number of Covered Shares set forth in
Section 2
below free of restrictions once the Restricted Period ends, subject to the terms of this Award Agreement and the Plan.
Section 2.
Terms of Restricted Stock Award
.
The following words and phrases relating to the Award shall have the following meanings:
(a)
The “
Participant
” is
.
(b)
The “
Grant Date
” is
.
(c)
The number of “
Covered Shares
” is
Shares.
Except for words and phrases otherwise defined in this Award Agreement, any capitalized word or phrase in this Award Agreement shall have the meaning ascribed to it in the Plan.
Section 3.
Restricted Period
.
(a)
The “
Restricted Period
” for each installment of Covered Shares 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:
|
|
% of Covered Shares
|
|
Date/Event/Other Condition
|
(b)
Notwithstanding the foregoing provisions of this
Section 3
, the Restricted Period for all the Covered Shares shall cease immediately and such Covered Shares shall become fully vested immediately upon the Participant’s Termination of Service due to the Participant’s Disability or the Participant’s death.
(c)
Upon a Change in Control, the Award shall be treated in accordance with Section 4.1 of the Plan.
(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 rights, title and interest in and to any Installment(s) still subject to a Restricted Period as of such Termination of Service.
Section 4.
Delivery
of Shares
.
Delivery of Shares or other amounts under this Award Agreement and the Plan shall be subject to the following:
(a)
Co
mpliance with Applicable Laws.
Notwithstanding any other provision 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.
(b)
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 deliveries of Covered Shares shall be subject to withholding of all applicable taxes. The Company shall have the right to require the Participant (or if applicable, permitted assigns, heirs and Designated Beneficiaries) to remit to the Company an amount sufficient to satisfy any tax requirements prior to the delivery date of any Shares in connection with the Award. As permitted by the Committee from time to time, such withholding obligation may be satisfied at the election of the Participant (a) through cash payment by the Participant, (b) through the surrender of Shares that the Participant already owns or (c) through the surrender of Shares to which the Participant is otherwise entitled under the Plan;
provided
,
however
, that except as otherwise specifically provided by the Committee, such Shares under clause (c) may not be used to satisfy more than the Company’s minimum statutory withholding obligation.
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.
Dividends
.
The Participant shall be entitled to receive dividends and distributions paid on any Installment during the Restricted Period applicable to such Installment (other than dividends and distributions that may be issued with respect to Shares by virtue of any
2
corporate transaction, to the extent adjustment is made pursuant to Section 3.4 of the Plan);
provided, however
, that no dividends or distributions shall be payable 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 respective Covered Shares.
Section 8.
Voting Rights
.
The Participant shall be entitled to vote the Covered Shares during the Restricted Period applicable to each Installment;
provided, however
, that the Participant shall not be entitled to vote Covered Shares with respect to record dates occurring before the Grant Date or on or after the date, if any, on which the Participant has forfeited those Covered Shares.
Section 9.
Deposit of Restricted Stock Award
.
All Shares
issued with respect to Covered Shares shall be registered in the name of the Participant and shall be retained by the Company, or an agent of the Company, until the end of the Restricted Period applicable to such Covered Shares.
Section 10.
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 11.
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 12.
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 office of the secretary of 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
3
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 13.
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 14.
Amendment
.
Without limitation of
Section 17
and
Section 18
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 15.
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 16.
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 17.
Section 409A Amendment
.
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.
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 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.
*
*
*
*
*
4
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:
|
|
|
|
|
|
|
|
|
Exhibit 4.4
OLD SECOND BANCORP, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
The Participant specified below is hereby granted a restricted stock unit award (the “
Award
”) by
OLD SECOND BANCORP, INC.
, a Delaware corporation (the “
Company
”), under the
OLD SECOND BANCORP, INC. 2014 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 hereby grants 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 in the future once the Restricted Period 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 shall have the following meanings:
(a)
The “
Participant
” is
.
(b)
The “
Grant Date
” is
.
(c)
The number of “
RSUs
” is
Shares.
Except for words and phrases otherwise defined in this Award Agreement, any capitalized word or phrase in this Award Agreement shall have the meaning ascribed to it 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:
|
|
% of RSUs
|
|
Date/Event/Other Condition
|
(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 Agreement, “
Retirement
” shall mean the Participant’s voluntary Termination of Service on or after the attainment of 62 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.
(c)
Upon a Change in Control, the Award shall be treated in accordance with Section 4.1 of the Plan.
(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)
Co
mpliance 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 deliveries of Shares pursuant to the Award shall be subject to withholding of all applicable taxes. The Company shall have the right to require the Participant (or if applicable, permitted assigns, heirs and Designated Beneficiaries) to remit to the Company an amount sufficient to satisfy any tax requirements prior to the delivery date of any Shares in connection with the Award. As permitted by the Committee from time to time, such withholding obligation may be satisfied at the election of the Participant (a) through cash payment by the Participant, (b) through the surrender of Shares that the Participant already owns or (c) through the surrender of Shares to which the Participant is otherwise entitled under the Plan;
provided
,
however
, that except as otherwise specifically provided by the Committee, such Shares under clause (c) may not be used to satisfy more than the Company’s minimum statutory withholding obligation.
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,
2
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 be entitled to receive a payment of additional RSUs equal in value to any dividends and distributions paid with respect to the RSUs (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) during the Restricted Period (“
Dividend Equivalents
”);
provided
,
however
, that no Dividend Equivalents shall be payable 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 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 the settlement of the RSUs pursuant to
Section 4(a)
above and issuance of Shares as provided herein.
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
3
may be obtained by the Participant from the office of the Corporate Secretary of 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 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, 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
4
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 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.
*
*
*
*
*
5
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:
|
|
Exhibit 5.1
June 24, 2014
Old Second Bancorp, Inc.
37 South River Street
Aurora, Illinois 60506
Re:
Registration Statement on Form S-8 of Old Second Bancorp, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Old Second Bancorp, Inc., a Delaware corporation (the “
Company
”), in connection with the registration under the Securities Act of 1933, as amended (the “
Act
”), of 375,000 shares (the “
Shares
”) of common stock, $1.00 par value per share, of the Company (the “
Common Stock
”), authorized for issuance pursuant to the Old Second Bancorp, Inc. 2014 Equity Incentive Plan (the “
Plan
”), as set forth in the Registration Statement on Form S-8 being filed with the Securities and Exchange Commission (the “
Commission
”) on June 24, 2014 (together with all exhibits thereto, the “
Registration Statement
”). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
We have made such legal and factual investigations as we deemed necessary for purposes of this opinion. We have examined originals or copies, certified or otherwise identified to our satisfaction, of: (a) the Registration Statement; (b) the Company’s Articles of Incorporation, as amended and currently in effect (the “
Articles of Incorporation
”); (c) the Company’s Bylaws, as amended and currently in effect (the “
Bylaws
”); (d) the resolutions of the board of directors of the Company (the “
Board
”) dated June 17, 2014 with respect to the filing of the Registration Statement; (e) the Plan; and (f) such other certificates, statutes and other instruments and documents as were considered appropriate for purposes of the opinions hereafter expressed. In our investigation, we have assumed the genuineness of all signatures, the proper execution of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to us as facsimile, electronic or photostatic copies and the authenticity of the originals of such copies. As to matters of fact, we have relied upon oral or written representations of officers of the Company.
The opinions set forth herein are subject to the following assumptions, qualifications, limitations and exceptions being true and correct at or before the time of the delivery of any Shares issued pursuant to the Plan: (a) either certificates representing the Shares shall have been duly executed, countersigned and registered and duly delivered to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof), or if any Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Share to the person entitled thereto against payment of the agreed consideration therefor (in an amount not less than the par value thereof), all in accordance with the Plan; (b) the Registration Statement, and any amendments thereto (including post-effective amendments), shall have become effective under the Act, and such effectiveness shall not have been terminated or rescinded; and (c) the Shares shall have been issued in accordance with the Plan.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations set forth herein, it is our opinion that the Shares have been duly authorized and, when the Registration
Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900 | Chicago, Illinois 60606 | T. 312.984.3100 | F. 312.984.3150 | bfkn.com
Statement becomes effective and the Shares have been issued in accordance with the Plan, the Shares will be validly issued, and subject to the restrictions imposed by the Plan, fully paid and nonassessable.
We express no opinion concerning the laws of any jurisdiction other than the Business Corporation Act of 1983 of the State of Illinois.
We express no opinion with respect to any specific legal issues other than those explicitly addressed herein. We assume no obligation to update this opinion letter after the date that the Registration Statement initially becomes effective or otherwise advise you with respect to any facts or circumstances or changes in law that may occur or come to our attention after such date (even though the change may affect the legal conclusions stated in this opinion letter).
We hereby consent to the inclusion of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
|
|
Very truly yours,
|
|
|
|
|
|
|
|
|
/s/ Barack Ferrazzano Kirschbaum & Nagelberg LLP
|