Registration No. 333-
As filed with the Securities and Exchange Commission on October _____, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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 or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459, (630) 875-7450
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Donald J. Swistowicz
Executive Vice President
First Midwest Bancorp, Inc.
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459
(630) 875-7450
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Timothy M. Sullivan Gary L. Mowder
Hinshaw & Culbertson Schiff Hardin & Waite
222 North LaSalle Street, Suite 300 7200 Sears Tower
Chicago, Illinois 60601-1081 Chicago, Illinois 60606
(312) 704-3000 (312) 258-5514
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Share* Offering Price* Fee
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Common Stock; $.01 Par Value ** 1,520,611 $38.00 $57,783,218 $17,510.07
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* Estimated solely for the purpose of calculating the registration fee and
computed pursuant to Rule 457(c) of the Securities Act of 1933, based on
the average of the high and low prices of the Common Stock on the Nasdaq
Stock Market's National Market as quoted in the Wall Street Journal on
October 7, 1997.
** The registrant is also registering Preferred Share Purchase Rights which are
evidenced by the certificates for the Common Stock being registered in a
ratio of one Preferred Share Purchase Right for each share of Common Stock.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
Subject to Completion, dated October ______, 1997
PROSPECTUS , 1997
FIRST MIDWEST BANCORP, INC.
1,520,611 Shares
Common Stock
($.01 par value)
This Prospectus pertains to an offering from time to time of up to
1,520,611 shares of common stock, par value $.01 ("Common Stock"), of First
Midwest Bancorp, Inc. (the "Company"), held by stockholders (the "Selling
Stockholders") who received the shares in exchange for their shares of
common stock of SparBank, Incorporated ("SparBank"), in connection with the
Company's acquisition of SparBank on October 1, 1997. See "SELLING
STOCKHOLDERS" (located on pages 7-8 of this Prospectus). The Company will
not receive any proceeds from the sale of the shares of Common Stock covered
by this Prospectus. The Company has agreed to pay certain expenses in
connection with this offering (excluding underwriting discounts, selling
commissions, brokers' fees or similar discounts, commissions or fees to be
paid by the Selling Stockholders).
The Common Stock is quoted on the Nasdaq Stock Market's National Market
(the "Nasdaq National Market") under the symbol "FMBI". On October 7,
1997, the last sale price of the Common Stock as reported on the Nasdaq
National Market was $37.75 per share.
The Common Stock may be offered for sale from time to time by the
Selling Stockholders to or through underwriters or directly to other
purchasers or through agents or brokers in one or more transactions on the
Nasdaq National Market, in one or more private transactions, or in a
combination of such methods of sale, at prices and on terms then prevailing,
at prices related to such prices, or at negotiated prices. The price at
which any of the shares of Common Stock may be sold, and the commissions, if
any, paid in connection with any such sale, are unknown and may vary from
transaction to transaction. As of the date hereof, the distribution and
sale of the shares of Common Stock offered hereby are also subject to the
provisions of an Investment Agreement, dated as of June 18, 1997, between
the Company and the Selling Stockholders. The Investment Agreement
requires, among other things, that any transfer of the shares "to the
public" be made in an "ordinary trading transaction." An "ordinary trading
transaction" is defined in the Investment Agreement as a sale of the shares
on the Nasdaq National Market using the services of a broker-dealer
registered in the state where the transfer is to occur, without the use of
special selling efforts or methods. See "PLAN OF DISTRIBUTION" (located on
pages 9-10 of this Prospectus).
See "INVESTMENT CONSIDERATIONS" (located on pages 4-7 of the
Prospectus) for a discussion of certain risks that should be considered by
prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
TABLE OF CONTENTS
The Company............................................................... 3
Recent Developments....................................................... 3
Investment Considerations................................................. 4
Use of Proceeds........................................................... 7
Selling Stockholders...................................................... 7
Plan of Distribution...................................................... 9
Legal Matters.............................................................10
Experts...................................................................10
Available Information.....................................................10
Incorporation of Certain Documents by Reference...........................11
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy to any person in any jurisdiction where such
an offer or solicitation would be unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that the information contained herein is current as of
any time subsequent to the date hereof.
2
THE COMPANY
The Company is a Delaware corporation that was incorporated in 1982 for
the purpose of becoming a multi-bank holding company. The subsidiaries
("Affiliates") of the Company include a commercial bank that is a national
banking association and three nonbank Affiliates that offer trust and
investment management, mortgage banking and credit life insurance related
services in the same markets served by the bank Affiliate. See also "RECENT
DEVELOPMENTS" below. The Company, headquartered in the Chicago suburb of
Itasca, Illinois, is Illinois' third largest publicly traded bank holding
company with assets of approximately $3.2 billion at September 30, 1997.
The Company's national bank affiliate, First Midwest Bank, National
Association (the "Bank"), is engaged in the general commercial banking
business which embraces all the usual functions of commercial and retail
banking, including: accepting deposits; commercial and industrial, consumer
and real estate lending; collections; safe deposit box operations; and other
banking services tailored for individual, commercial and industrial and
governmental customers. The Bank operates 50 banking offices in northern
Illinois with approximately 80% of its banking assets located in the
suburban metropolitan Chicago area. Another approximate 13% of the Bank's
assets are located in the "Quad-Cities" area of Western Illinois which
includes the Illinois cities of Moline and Rock Island and the Iowa cities
of Davenport and Bettendorf. The remaining assets of the Bank are located
in the southeastern region of the state in Vermilion and Champaign counties.
In each of the primary markets in which the Bank operates, it ranks among
the top five banking institutions in market share of deposits.
First Midwest Trust Company, N.A. (the "Trust Company"), provides trust
and investment management services to its clients, acting as executor,
administrator, trustee, agent, and in various other fiduciary capacities.
As of September 30, 1997, the Trust Company had approximately $1.4 billion
in trust assets under management, comprised of accounts ranging from small
personal investment portfolios to large corporate employee benefit plans.
First Midwest Insurance Company operates as a reinsurer of credit life,
accident and health insurance sold through the Bank, primarily in
conjunction with its consumer lending operations.
First Midwest Mortgage Corporation (the "Mortgage Corporation")
performs centralized residential real estate mortgage loan origination,
sales and servicing operations previously conducted by the Bank.
The Company's principal executive office is located at 300 Park
Boulevard, Suite 405, Itasca, Illinois, 60143-3459, and its telephone number
is (630) 875-7450.
RECENT DEVELOPMENTS
The Company consummated the acquisition of SparBank, the holding
company of McHenry State Bank ("MSB"), which is headquartered in McHenry,
Illinois, on October 1, 1997. MSB operates four banking offices in McHenry
County, Illinois, and had total assets of approximately
3
$437 million as of September 30, 1997. The Company presently plans to merge MSB
into the Bank during the first quarter of 1998.
The acquisition was accounted for as a pooling of interests. The Selling
Stockholders received 21.7234 shares of Common Stock for each share of SparBank
common stock they owned in a tax-free exchange. The Company issued 3,230,764
shares of Common Stock to the Selling Stockholders in exchange for all of the
issued and outstanding common stock of SparBank.
Acquisition Charge. The Company consummated its acquisition of SparBank on
October 1, 1997. Incident to such acquisition, the Company expects to record in
the fourth quarter of 1997 an acquisition charge (currently estimated to be
approximately $6.5 million) representing primarily investment banker fees,
severance and related benefit costs, legal fees and professional services,
contract termination fees and certain other nonrecurring merger-related costs
including a one-time provision incident to conforming SparBank's loan loss
reserves and credit policies to First Midwest's.
INVESTMENT CONSIDERATIONS
Prospective purchasers should consider carefully the following factors
associated with the ownership of the Common Stock together with the other
information contained in this Prospectus.
Competition. Illinois, and more specifically the metropolitan Chicago
area, is a highly competitive market for banking and related financial services.
Since the Chicago area is the Company's focus market, the Bank, MSB and the
Mortgage Corporation are exposed to varying types and levels of competition from
associated industries. In general, however, the Bank, MSB and the Mortgage
Corporation compete with other banking institutions, savings and loan
associations, personal loan and finance companies, and credit unions within
their market areas. The Trust Company competes with retail and discount stock
brokers, investment advisors, mutual funds, insurance companies, and to a lesser
extent, financial institutions. Factors influencing the type of competition
experienced by the Trust Company generally involve the variety of products and
services that can be offered to clients. Satisfying the needs of the client, in
terms of providing quality services and tailored products at competitive prices,
primarily dictates the competitive advantage within the industries.
Loan Portfolio Risks. Inherent in the Company's banking operations are
risks associated with the loan portfolio, including credit, interest rate,
prepayment and liquidity risk. The Company manages such risks through adherence
to policies and procedures designed to control and/or limit risk, such as
underwriting and asset/liability policies and procedures as well as a detailed
loan rating system used in conjunction with independent credit reviews performed
by its loan review staff. Further, loan loss reserve policies provide Management
with recommended levels of loan reserves, mitigating the financial statement
impact of unforeseen future losses on loans. Management does not believe that
the overall loan portfolio risk inherent in the Company's loan portfolio is in
excess of risks experienced by others in the same or similar industries.
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Impact of Interest Rate Changes. Interest rate risk is an inherent part of
the banking business as financial intermediaries gamer deposits and borrow other
funds to finance earning assets. Risk results when either contractual
relationships or prevailing market conditions cause rates paid on deposits and
other borrowings to reprice on a basis which does not coincide with the
repricing events affecting yields on earning assets. If more assets than
liabilities reprice in a given time period, the balance sheet is considered
asset-sensitive. In a rising interest rate environment, this position would
generally result in favorable growth in net interest income, and in a declining
interest rate environment, net interest income would be adversely affected.
Conversely, if more liabilities than assets reprice, the balance sheet is
considered liability-sensitive. In a rising rate environment, this position
would generally result in an adverse effect on net interest income, and in a
declining interest rate environment the effect would be favorable.
Economic Conditions and Monetary Policies. Conditions beyond Management's
control may have a significant impact on changes in net interest income from one
period to another. Examples of such conditions could include: (a) the strength
of credit demands by customers; (b) fiscal and debt management policies of the
federal government, including changes in tax laws; (c) the Federal Reserve
Board's monetary policy, including the percentage of deposits that must be held
in the form of non-performing cash reserves; (d) the introduction and growth of
new investment instruments and transaction accounts by non-bank financial
competitors; and (e) changes in rules and regulations governing payment of
interest on deposit accounts.
Government Regulation. The Company and its Affiliates are subject to
regulation and supervision by various governmental regulatory authorities
including, but not limited to, the Federal Reserve Board, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation (the
"FDIC"), the Illinois Commissioner of Banks and Real Estate, the Arizona
Department of Insurance, the Internal Revenue Service and state taxing
authorities. Financial institutions and their holding companies are extensively
regulated under federal and state law.
Federal and state laws and regulations generally applicable to financial
institutions, such as the Company and the Affiliates, regulate, among other
things, the scope of business, investments, reserves against deposits, capital
levels relative to operations, the nature and amount of collateral for loans,
the establishment of branches, mergers, consolidations and dividends. This
supervision and regulation is intended primarily for the protection of the
FDIC's bank and savings association insurance funds and depositors of a
financial institution. Consequently, laws and regulations may impose limitations
on the Company that may not be in the best interests of the Company and its
stockholders. The effect of such statutes, regulations and policies can be
significant, and cannot be predicted with a high degree of certainty.
FDIC Insurance Premiums. The deposits of the Company are insured up to
$100,000 per insured member (as defined by law and regulation) by the FDIC with
such insurance backed by the full faith and credit of the United States
government. The Company's deposits are predominantly insured by the Bank
Insurance Fund ("BIF") while certain deposits of the Company are insured by the
Savings Association Insurance Fund ("SAIF"), both of which are administered by
the FDIC.
5
As insurer, the FDIC assesses deposit insurance premiums and is authorized
to conduct examinations of, and require reporting by, FDIC-insured institutions.
Deposit insurance premiums are assessed through a risk-based system under which
all insured depository institutions are placed into one of nine categories and
assessed insurance premiums based upon their level of capital and supervisory
evaluation. Institutions assigned higher risk classifications pay deposit
insurance premiums at a higher rate than the institutions assigned lower risk
classifications.
The 1997 annual deposit insurance premium established by the FDIC for the
Company's BIF assessable deposits is set at 0 %, reflecting the lowest premium
assessment as the Company is classified as well-capitalized. Further, as a
result of the special assessment on SAIF deposits required by the Deposit
Insurance Funds Act of 1996, the SAIF was recapitalized on October 1, 1996.
Accordingly, no premium assessments have been imposed on the Company's SAIF
deposits for 1997. It is unknown whether such assessments will change in future
periods.
For 1997, the Company will pay premium assessments on both its BIF and SAIF
deposits in order to service the interest on the Financing Corporation ("FICO")
bond obligations which were used to finance the cost of "thrift bailouts" in the
1980's. The FICO assessment rates on BIF assessable deposits were set at $.01296
and $.0126 per $100 of insured deposits for the 1997 first and second semi-
annual periods, respectively, and $.0648 and $.0630 per $100 of insured for SAIF
assessable deposits, respectively, for such periods. These rates may be adjusted
quarterly to reflect changes in the assessment basis for the BIF and SAIF. By
law, the FICO rate on BIF assessable deposits must be 1/5 of the rate on SAIF
assessable deposits until the insurance funds are merged or until January 1,
2000, whichever occurs first.
Anti-Takeover Provisions. The Company has taken a number of actions which
could have the effect of discouraging a takeover attempt that might be
beneficial to stockholders who wish to receive a premium for their shares from a
potential bidder. The Company has adopted a stockholder rights plan which would
cause substantial dilution to a person who attempts to acquire the Company on
terms not approved by the Company's Board of Directors. The stockholder rights
plan may therefore have the effect of delaying or preventing any change in
control and deterring any prospective acquisition of the Company. The Company's
Restated Certificate of Incorporation and its Amended and Restated By-laws also
contain provisions which may have the effect of delaying or preventing a change
in control. The provisions include: (i) the classification of the Board of
Directors; (ii) the restriction that directors can only be removed for cause and
only by a majority of the directors or by the vote of persons holding 67 % of
the voting securities of the Company; (iii) the authority of the Board of
Directors to issue series of preferred stock with such voting rights and other
provisions as the Board of Directors may determine; (iv) a super-majority voting
requirement to approve certain business combinations; and (v) a super-majority
voting requirement to amend provisions of the Restated Certificate of
Incorporation or the Amended and Restated By-laws relating to the classification
of the Board, removal of directors and the super-majority voting requirement for
certain business combinations. In addition, Section 203 of the Delaware General
Corporation Law may have the effect of discouraging takeover attempts directed
at the Company. Furthermore, employment agreements with certain senior
executives of the Company provide for
6
severance pay in the event of a "Change of Control" of the Company as such term
is defined in such agreements.
Acquisition Charge. See "RECENT DEVELOPMENTS -- Acquisition Charge"
(located on page 4 of this Prospectus) for a description of the acquisition
charge to be recorded in the fourth quarter of 1997 incident to the acquisition
of SparBank.
USE OF PROCEEDS
All of the shares of Common Stock covered hereby are being offered by the
Selling Stockholders. The Company will not receive any proceeds from the sales
of Common Stock by the Selling Stockholders.
SELLING STOCKHOLDERS
On June 18, 1997, the Company, FMB Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of the Company ("FMB"), and SparBank and
certain of the Selling Stockholders entered into an Agreement and Plan of Merger
(the "Merger Agreement") pursuant to which SparBank was merged with and into FMB
on October 1, 1997 (the "Merger"). Upon the consummation of the Merger, each
outstanding share of common stock of SparBank was converted into 21.7234 shares
of Common Stock of the Company. A total of 3,230,764 shares of Common Stock were
issued to the Selling Stockholders in exchange for all of the issued and
outstanding shares of SparBank common stock.
The Selling Stockholders and the Company are parties to the Investment
Agreement pursuant to which the Company agreed to prepare and file with the
Securities and Exchange Commission (the "Commission") a Registration Statement
under the Securities Act of 1933, as amended (the "Securities Act"), registering
the offer and sale by the Selling Stockholders of an agreed-upon number of the
shares of Common Stock issued in the Merger. The Company has agreed to prepare
and file with the Commission such amendments and supplements to the Registration
Statement and the Prospectus as may be necessary to keep the Registration
Statement effective until the earlier of October 1, 1998, or the date on which
all of the shares of Common Stock offered hereby have been sold. Under the terms
of the Investment Agreement, the Company has agreed to pay certain fees and
expenses incurred in connection with the registration; provided, however, that
the Company will not pay any underwriting discounts, selling commissions,
brokers' fees or similar discounts, commissions or fees attributable to the sale
or distribution of the shares of Common Stock, which expenses will be paid by
the Selling Stockholders.
Under the Investment Agreement, the Selling Stockholders agreed that they
would not directly or indirectly offer, sell, pledge or transfer or otherwise
dispose of (or solicit any offers to buy, purchase, or otherwise acquire or
pledge) any of the shares offered hereby, except in compliance with the
Investment Agreement and the Securities Act and the rules and regulations
promulgated thereunder.
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The Selling Stockholders may not transfer their rights under the Investment
Agreement without the Company's consent. Such consent is not required, however,
in the case of a transfer by bequest, devise, inheritancy, laws of intestacy, or
gift.
The table below sets forth certain information with respect to the Selling
Stockholders and their beneficial ownership of Common Stock as of October 1,
1997, and includes information with respect to positions, offices or other
material relationships of the Selling Stockholders with the Company, or any of
its predecessors or affiliates, during the past three years. Each of the Selling
Stockholders will determine, in such Selling Stockholder's sole discretion, the
number of shares of Common Stock, if any, to be sold by such Selling Stockholder
during the effectiveness of the Registration Statement, but in no event will
such number exceed the number of shares of Common Stock specified below. The
Company may amend or supplement this Prospectus from time to time to disclose
the names, relationships to the Company, and holdings of Common Stock of
additional Selling Stockholders.
Number of Shares Percentage of
Shares of of Common Stock Common Stock
Common Stock Number of Shares Owned Assuming Owned Assuming
Owned Prior to of Common Stock the Sale of All of the Sale of All of
Name /1/ the Offering Offered the Shares Offered the Shares Offered
- -------- -------------- --------------- ------------------ ------------------
Geraldine C. Cowlin/2/..... 2,310,153 600,000 1,710,153 8.53%
William J. Cowlin, Sr./3/.. 8,689 8,689 0 0.00
William J. Cowlin, Jr./4/.. 114,286 114,286 0 0.00
Sarah Cowlin Towne/4/...... 114,286 114,286 0 0.00
Bridget Cowlin............. 114,286 114,286 0 0.00
Martha Cowlin.............. 114,286 114,286 0 0.00
David Cowlin............... 114,330 114,330 0 0.00
John Zieman................ 170,224 170,224 0 0.00
Jane Zieman Salmon......... 170,224 170,224 0 0.00
--------- ---------
Total................. 3,230,764 1,520,611
========= ---------
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1 William J. Cowlin, Sr., is the spouse of Geraldine C. Cowlin. William J.
Cowlin, Jr., Sarah Cowlin Towne, Bridget Cowlin, Martha Cowlin and David
Cowlin are the children of William J. Cowlin, Sr., and Geraldine Cowlin.
John Zieman and Jane Zieman Salmon are the nephew and niece of William J.
Cowlin, Sr., and Geraldine C. Cowlin.
2 Geraldine C. Cowlin served as President and a Director of SparBank and as a
Director of MSB prior to the Merger.
3 William J. Cowlin, Sr., served as Secretary and a Director of SparBank and
as a Director of MSB prior to the Merger. As provided in the Merger
Agreement, William J. Cowlin, Sr., was appointed to serve as a Director of
the Company effective as of October 1, 1997, for a three-year term. Under
the terms of the Merger Agreement, William J. Cowlin, Sr. (or such other
nominee of Geraldine C. Cowlin) shall be nominated by the Board of
Directors of the Company to serve as director of the Company for a second
three-year term following the expiration of his first term.
4 William J. Cowlin, Jr., and Sarah Cowlin Towne served as directors of MSB
prior to the Merger.
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PLAN OF DISTRIBUTION
Subject to applicable provisions of the Investment Agreement, the Common
Stock covered by this Prospectus may be offered for sale from time to time by
the Selling Stockholders to or through underwriters or directly to other
purchasers or through agents in one or more transactions on the Nasdaq National
Market, in one or more private transactions, or in a combination of such methods
of sale, at prices and on terms then prevailing, at prices related to such
prices, or at negotiated prices. Such methods of sale may include, without
limitation, (a) a block trade in which the broker-dealer so engaged will attempt
to sell the Common Stock as agent but may position and resell a portion of the
block as principal to facilitate the transaction, (b) purchases by a broker-
dealer as a principal and resale by such broker-dealer for its own account
pursuant to this Prospectus, and (c) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. This Prospectus may be
amended and supplemented from time to time to describe a specific plan of
distribution, to the extent that such amendment or supplement is required by
applicable law.
In connection with sales of the Common Stock or otherwise, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions. In connection with such transactions, broker-dealers or
other financial institutions may engage in short sales of Common Stock in the
course of hedging the positions they assume with the Selling Stockholders. To
the extent permitted by applicable law, the Selling Stockholders may also sell
Common Stock short and redeliver the shares to close out such short positions.
The Selling Stockholders may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealer or financial institution of the Common Stock offered hereby,
which Common Stock such broker-dealer or other financial institution may resell
pursuant to this Prospectus (as supplemented or amended to reflect such
transaction). The Selling Stockholders may also pledge the shares registered
hereunder to a broker-dealer or other financial institution and, upon a default,
such broker-dealer or other financial institution may, subject to the Investment
Agreement, effect sales of the pledged Common Stock pursuant to this Prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the Selling Stockholders in amounts
to be negotiated in connection with sales pursuant hereto. Any such remuneration
will be disclosed in a prospectus or prospectus supplement filed under the
Securities Act, to the extent such disclosure is required under applicable law.
The Selling Stockholders and such brokers and dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act, in connection with such sales, and any such
commission, discount or concession may be deemed to be underwriting discounts or
commissions under the Securities Act.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock will be sold hereunder in such jurisdictions only
through registered or licensed brokers or dealers.
Notwithstanding the foregoing, as of the date of this Prospectus, the
distribution and sale of the shares of Common Stock offered hereby are subject
to the provisions of the Investment Agreement. The Investment Agreement
requires, among other things, that any transfer of such shares of Common Stock
9
"to the public" be made in an "ordinary trading transaction." An "ordinary
trading transaction" is defined in the Investment Agreement as a sale of the
shares on the Nasdaq National Market using the services of a broker-dealer
registered in the state where the transfer is to occur, without the use of
special selling efforts or methods.
Under the Investment Agreement, the Company has agreed to indemnify the
Selling Stockholders and certain related persons against certain liabilities in
connection with the offering of the Common Stock pursuant to this Prospectus,
including liabilities arising under the Securities Act. The Selling Stockholders
have also agreed to indemnify the Company and certain related persons against
certain liabilities in connection with the offering of the Common Stock pursuant
to this Prospectus, including liabilities arising under the Securities Act.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Hinshaw & Culbertson, Chicago, Illinois.
EXPERTS
The consolidated financial statements of the Company appearing in First
Midwest Bancorp Inc's. Annual Report (Form 10-K) for the year ended December 31,
1996, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of the Company as of December 31,
1995 and for each of the years in the two-year period ended December 31, 1995
have been incorporated by reference herein in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, which report is
incorporated by reference herein upon the authority of said firm as experts in
accounting and auditing.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission (File Number 0-10967). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission, at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Regional Offices of the Commission at the following locations: Seven World Trade
Center, Suite 1300, New York, New York, 10048; and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, the Commission
maintains a Website (http://www.sec.gov) that contains certain reports, proxy
statements and other information regarding the Company that the
10
Company files electronically with the Commission. In addition, such reports,
proxy statements, and other information concerning the Company can be inspected
at the National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
items of which are contained in exhibits to the Registration Statement as
permitted by the rules and regulations of the Commission. Reference is hereby
made to the Registration Statement and to the exhibits thereto for further
information with respect to the Company. Any statements contained herein
concerning the provisions of any contract, agreement or other document are not
necessarily complete and, in each instance, reference is made to the copy of
such contract, agreement or other document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have heretofore been filed by the Company
with the Commission are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, and June 30, 1997;
3. The Company's Current Reports on Form 8-K dated February 11, 1997,
June 30, 1997, and October 2, 1997; and
4. The description of the Common Stock, $.01 par value, and Preferred Stock
purchase rights associated with the Common Stock of the Company, no par
value, as contained in the Company'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 Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made by this Prospectus
shall be deemed to be incorporated herein by reference and to be a part hereof.
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 Prospectus 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
Prospectus, except as so modified or superseded.
11
This Prospectus incorporates documents by reference which are not presented
herein or delivered herewith. Such documents (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference) are
available to any person, including any beneficial owner, to whom this Prospectus
is delivered, on written or oral request, without charge, directed to First
Midwest Bancorp, Inc., at its principal executive offices, 300 Park Boulevard,
Suite 405, Itasca, Illinois 60143-0459; Attention: Corporate Communications
Director (630) 875-7450.
12
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate, subject to future contingencies, of the expenses
to be incurred by the Company in connection with the issuance and distribution
of the Common Stock:
Registration fee -- Securities and Exchange Commission....... $17,510.07
Printing of Registration Statement and Prospectus............ 2,500.00
Listing fees................................................. 8,237.00
Blue Sky fees and expenses................................... -0-
Attorneys' fees and expenses................................. 5,000.00
Accountants' fees and expenses............................... 10,000.00
Miscellaneous distribution expenses.......................... 5,000.00
----------
Total...................................................... $48,247.07
Item 15. 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
II-1
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 Company's Amended and Restated By-laws and Restated Certificate of
Incorporation provide for indemnification of the Company's directors, officers,
employees and other agents to the fullest extent not prohibited by Delaware law.
The Company has entered into agreements to indemnify its directors and
executive officers, in addition to the indemnification provided for in the
Company's Amended and Restated By-Laws and Restated Certificate of
Incorporation. These agreements, among other things, will indemnify the
Company'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
Company 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
Company, arising out of such person's services as a director, officer, employee
or other agent of the Company, any subsidiary of the Company or any other
company or enterprise to which the person provides services at the request of
the Company. The Company believes that these provisions and agreements are
necessary to attract and retain talented and experienced directors and officers.
The Company'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 Company's 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 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 Company maintains liability insurance for the benefit of its directors
and officers.
Item 16. Exhibits.
See Exhibit Index on Page II-7.
II-2
Item 17. 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:
(i) To include any prospectus required by section 10(a) (3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new
II-3
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 provisions set forth or described in Item 15 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 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 itself is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 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, this 1st day of October,
1997.
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, the Registration Statement has been signed by the
following persons in the capacities indicated as of October 1, 1997.
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 Officer
- ------------------------------ and Director
Robert P. O'Meara
II-5
Signature Capacity
--------- --------
JOHN M. O'MEARA Executive Vice President, Principal
- ------------------------------- Operating Officer and Director
John M. O'Meara
DONALD J. SWISTOWICZ Executive Vice President, Principal
- ------------------------------- Financial and Accounting Officer
Donald J. Swistowicz
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
VERNON A. BRUNNER Director
- -------------------------------
Vernon A. Brunner
SISTER NORMA JANSSEN, O.S.F. Director
- -------------------------------
Sister Norma Janssen, O.S.F.
J. STEPHEN VANDERWOUDE Director
- ------------------------------
J. Stephen Vanderwoude
WILLIAM J. COWLIN Director
- ------------------------------
William J. Cowlin
II-6
EXHIBIT INDEX
Sequential
Exhibits Description Page No.
- -------- ----------- ----------
3 Restated Certificate of Incorporation is incorporated herein by
reference to Exhibit 3 to Quarterly Report on Form 10-Q dated
March 31, 1996.
3.1 Amended and Restated By-laws of the Company are
incorporated herein by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K dated December 31,
1994.
4 Rights Agreement dated February 15, 1989 is incorporated
herein by reference to the Company's Form 8-A filed with the
Securities and Exchange Commission on February 17, 1989.
4.1 Amended and Restated Rights Agreement, Form of Rights
Certificate and Designation of Series A Preferred Stock of the
Company, dated November 15, 1995, is incorporated herein by
reference to Exhibits (1) through (3) of the Company's
Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on November 21, 1995, and the
First Amendment to Rights Agreement, dated June 18, 1997, is
incorporated herein by reference to Exhibit (4) of the
Company'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 Hinshaw & Culbertson regarding legality. 20
10.1 Investment Agreement dated June 18, 1997 between the 21
Company and all of the stockholders of SparBank,
Incorporated.
23.1 Consent of Ernst & Young LLP. 40
23.2 Consent of KPMG Peat Marwick LLP. 41
23.3 Consent of Hinshaw & Culbertson (included in Exhibit 5). 20
24 Power of Attorney (contained on the signature page hereto). 17
II-7