As filed with the Securities and Exchange Commission on September 9, 1998
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FIRST MIDWEST BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3161078
(State of Incorporation) (I.R.S. Employer Identification No.)
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459 (630) 875-7450
(Address of principal executive offices, including zip code)
FIRST MIDWEST BANCORP, INC.
NONQUALIFIED RETIREMENT PLAN
(Full title of the plan)
Mr. Donald J. Swistowicz
Executive Vice President
First Midwest Bancorp, Inc.
300 Park Boulevard
Suite 405
Itasca, Illinois 60143-0459
(630) 875-7450
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Amount to be offering price aggregate registration
Title of securities to be registered registered per share offering price fee
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Common Stock, $.01 par value/(1)/........ 150,000 shares/(2)/ $39.91/(3)/ $ 5,986,500/(3)/ $1,814.09
Deferred Compensation Obligations/(4)/... $10,000,000 100% $10,000,000/(5)/ $3,030.30
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(1) The Registrant is also registering preferred share purchase rights which
are evidenced by the certificates for the Common Stock registered in a
ratio of one Preferred Share Purchase Right for each share of Common Stock.
(2) Pursuant to Rule 416(a) of the Securities Act of 1933, this Registration
Statement also covers an indeterminate number of shares as may be issuable
to prevent dilution resulting from stock splits, stock dividends or similar
transactions.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) based upon the averages of the high and low prices for
the Common Stock reported on the NASDAQ National Market System on September
4, 1998.
(4) The deferred compensation obligations are unsecured obligations of First
Midwest Bancorp, Inc. to pay deferred compensation in the future in
accordance with the terms of the First Midwest Bancorp, Inc. Nonqualified
Retirement Plan.
(5) Estimated solely for the purposes of determining the registration fee.
FIRST MIDWEST BANCORP, INC.
FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUSES
The documents containing the information required by this section will be given
to persons eligible to participate in the First Midwest Bancorp, Inc.
Nonqualified Retirement Plan and are not required to be filed with the
Commission as a part of this Registration Statement.
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FIRST MIDWEST BANCORP, INC.
FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant (File No. 0-10967) pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated in this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 and the Amendment on Form 10-K/A thereto;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998 and June 30, 1998;
(3) The Registrant's Current Reports on Form 8-K dated January 23, 1998,
April 28, 1998, May 28, 1998, June 22, 1998, July 1, 1998 and August
20, 1998; and
(4) The description of the Common Stock, $.01 par value, and Preferred
Stock purchases rights associated with the Common Stock of the
Registrant, no par value, as contained in the Registrant's
Registration Statement on Form 8-A, dated February 17, 1989, as
amended by subsequently filed reports on Form 8-A.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold are
incorporated by reference in this Registration Statement and are a part thereof
from the date of filing of such documents. Any statements contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein (or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Delaware law, a corporation may indemnify any person who was or
is a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of his service as a
director or officer of the corporation, or his service, at the corporation's
request, as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorney's fees) that are actually
and reasonably incurred by him ("Expenses"), and judgements, fines and amounts
paid in settlement that are actually and reasonably incurred by him, in
connection with the defense or settlement of such action, provided that he acted
in good faith and in a matter he reasonably believed to be in or not opposed to
the corporations' best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was unlawful.
Although Delaware law permits a corporation to indemnify any person referred to
above against Expenses in connection with the defense or settlement of an action
by or in the right of the corporation, provided that he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the corporation's
best interests, if such person has been judged liable to the corporation,
indemnification is only permitted to the extent that the Court of Chancery (or
the court in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity for such
Expenses as the court deems proper. The determination as to whether a person
seeking indemnification has met the required standard of conduct is to be made
(1) by a majority vote of a quorum of disinterested members of the board of
directors, or (2) by independent legal counsel in a written opinion, if such a
quorum does not exist or if the disinterested directors so direct, or (3) by the
stockholders. The General Corporation Law of the State of Delaware also provides
for mandatory indemnification of any director, officer, employee or agent
against Expenses to the extent such person has been successful in any proceeding
covered by the statute. In addition, the General Corporation Law of the State of
Delaware provides the general authorization of advancement of a director's or
officer's litigation expenses in lieu of requiring the authorization of such
advancement by the board of directors in specific cases, and that
indemnification and advancement of expenses provided by the statute shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement or
otherwise.
The Registrant's Amended and Restated By-laws and Restated Certificate
of Incorporation provide for indemnification of the Registrant's directors,
officers, employees and other agents to the fullest extent not prohibited by
Delaware law.
The Registrant has entered into agreements to indemnify its directors
and executive officers, in addition to the indemnification provided for in the
Registrant Amended and Restated By-laws and Restated Certificate of
Incorporation. These agreements, among other things, will indemnify the
Registrant's directors and executive officers for all direct and indirect
expenses and costs (including, without limitation, all reasonable attorneys'
fees and related disbursements, other out of pocket costs and reasonable
compensation for time spent by such persons for which they are not otherwise
compensated by the Registrant or any third party) and liabilities of any type
whatsoever (including, but not limited to, judgements, fines and settlement
fees) actually and reasonably incurred by such person in connection with either
the investigation, defense, settlement or appeal of any threatened, pending or
completed action suit or other proceeding, including any action by or in the
right of the Registrant, arising out of such person's services as a director,
officer, employee or other agent of the Registrant, any subsidiary of the
Registrant or any other company or enterprise to which the person provides
services at the request of the Registrant. The Registrant believes that these
provisions and agreements are necessary to attract and retain talented and
experienced directors and officers.
The Registrant's Restated Certificate of Incorporation is consistent
with Section 102(b)(7) of the Delaware General Corporation Law, which generally
permits a corporation to include a provision limiting the personal liability of
a director in the corporation's certificate of incorporation. With limitations,
this provision eliminates the personal liability of the Registrant's directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director. However, this provision does not eliminate
director liability: (1) for breaches of duty of loyalty to the Registrant and
its stockholders; (2) for acts of omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) for transactions from
which a director derives improper personal benefit; or (4) under Section 174 of
the Delaware General Corporation Law ("Section 174"). Section 174 makes
directors personally liable for unlawful dividends and stock repurchases or
redemptions and expressly sets forth a negligence standard with respect to such
liability.
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While this provision protects the directors from awards for monetary damages for
breaches of their duty of care, it does not eliminate their duty of care. The
limitations in this provision have no effect on claims arising under the
securities laws.
The Registrant maintains liability insurance for the benefit of its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits filed herewith or incorporated by reference herein are
set forth in the Exhibit Index filed as part of this registration statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the intimal bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in
this registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(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 6 of this
Registration Statement, or otherwise, the registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer of controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by itself is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1993, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Itasca, State of Illinois, on this 9/th/ day
September, 1998.
FIRST MIDWEST BANCORP, INC.
By: ROBERT P. O'MEARA
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Robert P. O'Meara
Chairman of the Board 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 1993, this
Registration Statement has been signed on this 9/th/ day September, 1998 by the
following persons in the capacities indicated.
Signatures Capacity
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ROBERT P. O'MEARA
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Robert P. O'Meara Chairman of the Board of Directors
and Chief Executive Officer
ANDREW B. BARBER
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Andrew B. Barber Honorary Chairman of the Board of
Directors
JOHN M. O'MEARA
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John M. O'Meara President, Chief Operating Officer and
Director
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DONALD J. SWISTOWICZ
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Donald J. Swistowicz Executive Vice President, Chief Financial
and Accounting Officer
VERNON A. BRUNNER
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Vernon A. Brunner Director
BRUCE S. CHELBERG
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Bruce S. Chelberg Director
WILLIAM J. COWLIN
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William J. Cowlin Director
O. RALPH EDWARDS
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O. Ralph Edwards Director
JOSEPH W. ENGLAND
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Joseph W. England Director
BROTHER JAMES GAFFNEY, FCS
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Brother James Gaffney, F.C.S. Director
THOMAS M. GARVIN
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Thomas M. Garvin Director
JACK PAYAN
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Jack Payan Director
JOHN L. STERLING
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John L. Sterling Director
J. STEPHEN VANDERWOUDE
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J. Stephen Vanderwoude Director
RICHARD T. WOJCIK
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Richard T. Wojcik Director
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EXHIBIT INDEX
Sequential
Exhibit Page
Number Description of Documents Number
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4.1 Amended and Restated Rights Agreement, Form of Rights Certificate and
Designation of Series A Preferred Stock of the Registrant, dated November
15, 1995 is incorporated herein by reference to Exhibits (1) through (3) of -
the Registrant's Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on November 21, 1995.
4.2 First Amendment to Rights Agreement, dated June 18, 1997, is -
incorporated herein by reference to Exhibit 4 of the Registrant's
Amendment No. 2 to the Registration Statement on Form 8-A filed with the
Securities and Exchange Commission on June 30, 1997.
5 Opinion of Vedder, Price, Kaufman & Kammholz. 9
23.1 Consent of Vedder, Price, Kaufman and Kammholz (contained in the 9
opinion filed as Exhibit 5).
23.2 Consent of Ernst & Young LLP. 10
23.3 Consent of KPMG Peat Marwick LLP 11
23.4 Consent of Grant Thornton LLP. 12
24 Power of Attorney (set forth on the signature page hereof). 6
99 Restated Nonqualified Retirement Plan. 13
8