As filed with the Securities and Exchange Commission on February 28, 1997
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST MIDWEST FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 42-1406262
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Fifth at Erie
Storm Lake, Iowa 50588
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
FIRST MIDWEST FINANCIAL, INC.
1995 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Jeffrey M. Werthan, P.C.
Michael S. Sadow, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
7th Floor, East Tower
1100 New York Ave., NW
Washington, DC 20005
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of securities to Amount to be offering price aggregate Amount of
be registered registered(1) per share offering price registration fee
------------- ------------- --------- -------------- ----------------
Common Stock, par
value $.01 per share 268,203 shares $ (2) $4,430,305(2) $1,343(2)
==========================================================================================================
(1)Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set forth
above, an indeterminate number of shares which by reason of certain events
specified in the Plan, may become subject to the Plan.
(2)Estimated in accordance with Rule 457(h), solely for the purpose of
calculating the registration fee. Of the 268,203 shares being registered
hereby, (i) 33,990 shares are subject to options with an exercise price of
$15.75 per share ($535,342.50 in the aggregate), and (ii) the remaining
234,213 shares which have not been awarded to date and are being registered
based upon the average of the high and low sales price of the Common Stock on
The Nasdaq Stock Market of $16.63 per share on February 24, 1997 ($3,894,962
in the aggregate).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participants in the First Midwest Financial, Inc. 1995
Stock Option and Incentive Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by First Midwest Financial, Inc. (the
"Company") with the Commission are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1996 (File No. 0-22140) filed pursuant to Rule 13(a)-1 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to above;
(c) The description of the common stock, par value $.01 per share, of the
Company contained in the Company's Registration Statement on Form 8-A
(File No. 0-22140) filed with the Commission on July 23, 1993 and all
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof
and 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, shall be deemed incorporated by reference into this
Registration Statement and to be a part thereof from the date of the filing of
such documents. Any statement contained in the documents incorporated, or deemed
to be incorporated, by reference herein or therein shall be deemed to be
modified or superseded for purposes of this Registration Statement and the
Prospectus to the extent that a statement contained herein or therein or in any
other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein or therein 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 and the Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to
Investor Relations Department, First Midwest Financial, Inc., Fifth at Erie,
Storm Lake, Iowa 50588, telephone number (712) 732-4117.
All information appearing in this Registration Statement and the Prospectus is
qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article ELEVENTH of the Company's Certificate of Incorporation
provides for indemnification of directors and officers of the Registrant against
any and all liabilities, judgments, fines and reasonable settlements, costs,
expenses and attorneys' fees incurred in any actual, threatened or potential
proceeding, except to the extent that such indemnification is limited by
Delaware law and such law cannot be varied by contract or bylaw. Article
ELEVENTH also provides for the authority to purchase insurance with respect
thereto.
Section 145 of the General Corporation Law of the State of
Delaware authorizes a corporation's board of directors to grant indemnity under
certain circumstances to directors and officers, when made, or threatened to be
made, parties to certain proceedings by reason of such status with the
corporation, against judgments, fines, settlements and expenses, including
attorneys' fees. In addition, under certain circumstances such persons may be
indemnified against expenses actually and reasonably incurred in defense of a
proceeding by or on behalf of the corporation. Similarly, the corporation, under
certain circumstances, is authorized to indemnify directors and officers of
other corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a proceeding
by or in the right of such other corporation or enterprise. Indemnification is
permitted where such person (i) was acting in good faith, (ii) was acting in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation or other corporation or enterprise, as appropriate, (iii) with
respect to a criminal proceeding, had no reasonable cause to believe his conduct
was unlawful, and (iv) was not adjudged to be liable to the corporation or other
corporation or enterprise (unless the court where the proceeding was brought
determines that such person is fairly and reasonably entitled to indemnity).
Unless ordered by a court, indemnification may be made only
following a determination that such indemnification is permissible because the
person being indemnified has met the requisite standard of conduct. Such
determination may be made (i) by a majority vote of the Directors of the Company
who are not parties to such action, suit or proceeding, even though such
directors constitute less than a quorum, or (ii) if there are no such directors,
or if such directors so direct, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
Section 145 also permits expenses incurred by directors and
officers in defending a proceeding to be paid by the corporation in advance of
the final disposition of such proceedings upon the receipt of an undertaking by
the director or officer to repay such amount if it is ultimately determined that
he is not entitled to be indemnified by the corporation against such expenses.
Under a directors' and officers' liability insurance policy,
directors and officers of the Company are insured against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Reference to Prior
Regulation S-K Filing or Exhibit
Exhibit Number Document Number Attached Hereto
- -------------- -------- ----------------------
4 Instruments Defining the Rights of Security
Holders, Including Indentures:
(1) Certificate of Incorporation of First
Midwest Financial, Inc. *
(2) Bylaws of First Midwest Financial, Inc. *
(3) First Midwest Financial, Inc. 1995 Stock
Option and Incentive Plan Attached as Exhibit 4
(4) Specimen form of common stock
certificate of First Midwest
Financial, Inc. *
5 Opinion of Silver, Freedman & Taff, L.L.P. Attached as Exhibit 5
15 Letter re unaudited interim financial
information Not Applicable
23 Consent of Experts and Counsel:
(1) Consent of Silver, Freedman
& Taff, L.L.P. Attached as Exhibit 23.1
(2) Consent of certified public accountants Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature Page
* Filed as exhibits to the Registrant's Registration Statement on Form S-1
(File No. 33-64654) filed with the Commission on June 17, 1993 pursuant to
Section 5 of the Securities Act of 1933 and all amendments thereto or reports
filed for the purpose of updating such description. All of such previously
filed documents are hereby incorporated herein by reference in accordance
with Item 601 of Regulation S-K.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant of expenses incurred or paid by a director, officer or
controlling person 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, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Storm Lake, State of Iowa, on February 28, 1997.
FIRST MIDWEST FINANCIAL, INC.
By /s/ James S. Haahr
---------------------
James S. Haahr, Chairman of the Board,
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James S. Haahr and/or Donald J. Winchell,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and re-substitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, 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, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all said
attorneys-in-fact and agents or their substitutes or substitute may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
/s/ James S. Haahr /s/ Jeanne Partlow
- ------------------ ------------------
James S. Haahr, Chairman of the Board, Jeanne Partlow, Director
President and Chief Executive Officer
(Duly Authorized Representative)
Date: February 28, 1997 Date: February 28, 1997
/s/ E. Wayne Cooley /s/ E. Thurman Gaskill
- ------------------- ----------------------
E. Wayne Cooley, Director E. Thurman Gaskill, Director
Date: February 28, 1997 Date: February 28, 1997
/s/ Rodney G. Muilenburg /s/ J. Tyler Haahr
- ------------------------ ------------------
Rodney G. Muilenburg, Director J. Tyler Haahr, Director
Date: February 28, 1997 Date: February 28, 1997
/s/ Donald J. Winchell
- ----------------------
Donald J. Winchell, Vice President and
Chief Financial Officer (Principal Financial
and Accounting Officer)
Date: February 28, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-------------------
EXHIBITS
TO
REGISTRATION STATEMENT ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
-------------------
FIRST MIDWEST FINANCIAL, INC.
1995 STOCK OPTION AND INCENTIVE PLAN
EXHIBIT INDEX
Regulation S-K Reference to Exhibit
Exhibit Number Document Number Attached Hereto
- -------------- -------- ----------------------
4 First Midwest Financial, Inc. 1995 Stock Option 4
and Incentive Plan
5 Opinion of Silver, Freedman & Taff, L.L.P. 5
23.1 Consent of Silver, Freedman & Taff, L.L.P. 23.1
23.2 Consent of certified public accountants 23.2
24 Power of Attorney Contained on Signature Page