As filed with the Securities and Exchange Commission on December 19, 1995
Registration No. 33-62581
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
Amendment No. 1
On
Form S-8
To
Form S-4
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
Number)
300 Park Boulevard
Suite 405
P.O. Box 459
Itasca, Illinois 60143-0459
(Address of Principal Executive Offices)
CF BANCORP, INC. 1992 STOCK OPTION AND INCENTIVE PLAN
(Full Title of Plan)
DONALD J. SWISTOWICZ
Executive Vice President
300 Park Boulevard
Suite 405
P.O. Box 459
Itasca, Illinois 60143-0459
(708) 875-7460
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
* Filed as Post-Effective Amendment No. 1 on Form S-8 to the Registrant's
Registration Statement on Form S-4 (Registration No. 33-62581) pursuant to the
procedure described herein. See "INTRODUCTORY STATEMENT NOT FORMING PART OF
THE PROSPECTUS".
INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS
An Agreement and Plan of Merger (the "Agreement"), dated as of May 31,
1995, was entered into by and between First Midwest Bancorp, Inc. a Delaware
corporation ("First Midwest" or the "Registrant"), and CF Bancorp, Inc., a
Delaware corporation ("CF"). Pursuant to the Agreement, CF will merge with
and into First Midwest, the separate existence of CF will cease and Citizens
Federal Savings Bank ("Citizens Federal"), a wholly owned subsidiary of CF and
its principal asset, will become a wholly owned subsidiary of First Midwest
(the "Merger").
As a result of the Merger, First Midwest will become the successor issuer
to CF, which, prior to the Merger, had been a reporting company under the
Securities Exchange Act of 1934. Pursuant to the Agreement, at the effective
time of the Merger, First Midwest will assume all obligations associated with
the CF Bancorp, Inc. 1992 Stock Option and Incentive Plan ("CF Option Plan")
pursuant to which First Midwest may issue after the effective time of the
Merger up to 99,346 shares of common stock, no par value per share, including
the associated Preferred Share Purchase Rights ("First Midwest Stock"), upon
exercise of stock options granted and outstanding at the time of the Merger
under the CF Option Plan.
Prior to the effective time of the Merger, the shares of CF common stock,
$.01 par value, issuable upon exercise of stock options granted under the
predecessor to the CF Option Plan were covered by an effective Registration
Statement on Form S-8 (Registration No. 33-56542). The 99,346 shares of First
Midwest Stock which may be issued upon exercise of stock options granted under
the CF Option Plan are covered by an effective Registration Statement on Form
S-4 (Registration No. 33-62581) which was declared effective by the Securities
and Exchange Commission on October 5, 1995 (the "S-4 Registration Statement").
First Midwest hereby amends the S-4 Registration Statement by filing this
Post-Effective Amendment No. 1 on Form S-8 with respect to the shares of First
Midwest Stock issuable upon exercise of stock options granted under the CF
Option Plan.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(A)
PROSPECTUS
Note: The documents containing the information required by this section will
be given to employees participating in the CF Option Plan and are not
required to be filed with the Commission as a part of the Registration
Statement or as an Exhibit.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant or First Midwest filed or to
be filed with the Commission are incorporated herein by reference as of their
respective date:
(a)First Midwest's Annual Report on Form 10-K for the year ended
December 31, 1994.
(b)All other reports filed by First Midwest pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since December 31, 1994.
(c)The description of the no par value Common Stock of First Midwest
contained in First Midwest's Registration Statement on Form S-4 (Registration
No. 33-62581) filed with the Commission on September 12, 1995 and all
amendments and reports filed by the Registrant for the purpose of updating
such description.
(d)The description of the Preferred Share Purchase Rights contained in
First Midwest's Registration Statement on Form 8-A filed with the Commission
on November 21, 1995 and all amendments and reports filed by the Registrant
for the purpose of updating such description.
(e)First Midwest's Current Reports on Form 8-K filed on November 21,
1995 and December 1, 1995.
All documents subsequently filed by First Midwest pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
filing of a post-effective amendment to the Registration Statement relating to
the Common Stock offered hereby which indicates that all such Common Stock has
been sold, or which deregisters all such Common Stock remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 attorneys' fees) that are
actually and reasonably incurred by him ("Expenses"), and judgments, 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 manner he reasonably believed to be in or not
opposed to the corporation's 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 bylaw, agreement or otherwise.
First Midwest's Restated Certificate of Incorporation (the
"Certificate") and its Bylaws provide for indemnification of First Midwest's
directors, officers, employees and other agents to the fullest extent
permitted by Delaware law.
First Midwest has entered into agreements to indemnify its directors
and executive officers, in addition to the indemnification provided for in
First Midwest's Restated Certificate and its Bylaws. These agreements, among
other things, will indemnify First Midwest's directors and executive officers
for all direct and indirect expenses and costs (including, without limitation,
all reasonable attorneys' fees and related disbursement, other out of pocket
costs and reasonable compensation for time spent by such persons for which
they are not otherwise compensated by First Midwest or any third party) and
liabilities of any type whatsoever (including, but not limited to, judgments,
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 corporation, arising out of such person's
services as a director, officer, employee or other agent of First Midwest, any
subsidiary of First Midwest or any other company or enterprise to which the
person provides services at the request of First Midwest.
First Midwest's Certificate is consistent with Section 102(b)(7) of the
Delaware General Corporation Law, which generally permits a company to include
a provision limiting the personal liability of a director in the company's
certificate of incorporation. With limitations, this provision eliminates the
personal liability of First Midwest's directors to First Midwest 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 First Midwest 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
federal securities laws.
First Midwest maintains liability insurance for the benefit of its
directors and officers.
The effect of the foregoing provisions of the General Corporation Law
of the State of Delaware and the Registrant's Amended and Restated Bylaws
would be to permit such indemnification by the Registrant for liabilities
arising under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this Registration Statement:
Exhibit
No. Description
4. Restated Certificate of Incorporation is incorporated herein by
reference to Exhibit 4.1 to First Midwest's Registration Statement
on Form S-3 (Registration No. 33-20439), filed with the Securities
and Exchange Commission on March 2, 1988.
4.1 Restated Bylaws of First Midwest are incorporated herein by
reference to Exhibit 3.1 to First Midwest's Annual Report on Form
10-K for the year ended December 31, 1993.
4.2 Amended and Restated Rights Agreement, dated November 15, 1995, is
incorporated herein by reference to First Midwest's Form 8-A filed
with the Securities and Exchange Commission on November 21, 1995.
4.3 Amended Certificate of Designation of Series A Preferred Stock.
5. & 8. Opinion of Hinshaw & Culbertson is incorporated herein by reference
to Exhibits 5 and 8 to First Midwest's Registration Statement on
Form S-4 (Registration No. 33-62581) filed with the Commission on
September 12, 1995.
23. Consent of Hinshaw & Culbertson.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of McGladrey & Pullen, LLP.
24. Powers of Attorney (filed as part of the signature page hereto).
99. CF Bancorp, Inc. 1992 Stock Option and Incentive Plan, form of
Incentive Stock Option Agreement and form of Nonqualified Stock
Option Agreement is incorporated herein by reference to CF's
Registration Statement on Form S-8 (Registration No. 33-56542)
filed with the Commission on December 30, 1992.
99.1 Amendment to the CF Bancorp, Inc. 1992 Stock Option and Incentive
Plan adopted by CF's Board of Directors on November 20, 1995.
ITEM 9. UNDERTAKINGS.
(A)RULE 415 OFFERINGS.
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 this Registration Statement or any material change to such
information in this Registration Statement.
(2)That, for the purpose of determining any liability under the 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 that remain unsold at the termination
of the offering.
(B)FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, 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 the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(H)ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION STATEMENT
ON FORM S-8.
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 described in Item 6, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, First Midwest
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Itasca, State of Illinois on the 18th day of
December, 1995.
FIRST MIDWEST BANCORP, INC.
By: ROBERT P. O'MEARA
Robert P. O'Meara
President and Chief Executive
Officer
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 1933, this
Registration Statement has been signed on December 18, 1995 by the following
persons in their capacities indicated.
Signature Capacity
CLARENCE D. OBERWORTMANN Chairman of the Board of Directors
Clarence D. Oberwortmann
ANDREW B. BARBER Vice Chairman of the Board of
Directors
Andrew B. Barber
ROBERT P. O'MEARA President, Principal Executive
Robert P. O'Meara Officer and Director
JOHN M. O'MEARA Executive Vice President, Principal
John M. O'Meara Operating Officer and Director
DONALD J. SWISTOWICZ Executive Vice President, Principal
Donald J. Swistowicz Financial and Accounting Officer
BRUCE S. CHELBERG Director
Bruce S. Chelberg
O. RALPH EDWARDS Director
O. Ralph Edwards
JOSEPH W. ENGLAND Director
Joseph W. England
THOMAS M. GARVIN Director
Thomas M. Garvin
ALAN M. HALLENE Director
Alan M. Hallene
SISTER NORMA JANSSEN, O.S.F. Director
Sister Norma Janssen, O.S.F.
ROBERT E. JOYCE Director
Robert E. Joyce
J. STEPHEN VANDERWOUDE Director
J. Stephen Vanderwoude
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
4.3 Amended Certificate of Designation
of Series A Preferred Stock.
23. Consent of Hinshaw & Culbertson.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of McGladrey & Pullen, LLP.
99.1 Amendment to the CF Bancorp, Inc.
1992 Stock Option and Incentive
Plan.