================================================================================
As filed with the Securities and Exchange Commission on December 9, 1999
Registration No. [__-_______]
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
------------------
UNIONBANCORP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 36-3145350
(State or other jurisdiction of incor- (I.R.S. Employer
poration or organization) Identification No.)
------------------
122 WEST MADISON STREET
OTTAWA, ILLINOIS 61350
(Address of principal executive offices)
------------------
UNIONBANCORP, INC. 1999 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
------------------
R. SCOTT GRIGSBY
CHIEF EXECUTIVE OFFICER
UNIONBANCORP, INC.
122 WEST MADISON STREET
OTTAWA, ILLINOIS 61350
(Name and address of agent for service)
(815) 434-3900
(Telephone number, including area code, of agent for service)
With copies to:
JOHN E. FREECHACK, ESQ.
LYNNE D. MAPES-RIORDAN, ESQ.
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG
333 WEST WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
(312) 984-3100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1)(2) per Share(3) Offering Price(2)(3) Registration Fee(3)
=======================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $1.00 Par Value 50,000 shares $15.41 $770,500.00 $203.41
=======================================================================================================================
</TABLE>
(1) This Form S-8 is being filed with the Securities and Exchange
Commission for the purpose of registering 50,000 shares of the
Registrant's Common Stock which are reserved for issuance pursuant
to the Registrant's 1999 Non-Qualified Stock Option Plan.
(2) Pursuant to Rule 416(a) under the Act, this Registration Statement
also registers such indeterminate number of additional shares as
may be issuable under the Plan in connection with share splits,
share dividends or similar transactions.
(3) Estimated pursuant to Rule 457(h) under the Act, solely for the
purpose of calculating the registration fee, based on the average
of the high and low prices for the Registrant's common stock as
reported on the Nasdaq Stock Market on December 6, 1999.
================================================================================
TOTAL NUMBER OF SEQUENTIALLY NUMBERED PAGES 23
EXHIBIT INDEX BEGINS ON SEQUENTIALLY NUMBERED PAGE 11
<PAGE>
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 UnionBancorp, Inc. 1999
Non-Qualified Stock Option 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 "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 Act.
2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by
UnionBancorp, Inc. (the "Company") with the Commission are hereby
incorporated by reference into this Registration Statement:
a. The Company's Annual Report on Form 10-K filed
with the Commission for the Company's fiscal year ended
December 31, 1998 on March 26, 1999. (File No.
0-28846).
b. All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the
fiscal year covered by the Form 10-K referred to in (a)
above.
c. The description of the Company's common stock, par
value $1.00 per share, contained in the Company's
Registration Statement on Form 8-A (File No. 028846),
filed with the Commission on September 4, 1996, and all
amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 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, shall be deemed incorporated by reference
into this Registration Statement and to be a part hereof 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 which is a part thereof (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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with the General Corporation Law of the State of
Delaware (being Chapter 1 of Title 8 of the Delaware Code), Article XIII of the
Company's Certificate of Incorporation, and Article VII of the Company's bylaws,
provide as follows:
ARTICLE XIII
No director of the corporation shall be
personally liable to the corporation or its
stockholders for monetary damages for breach of
fiduciary duty by such directors as a director;
provided, however, that this Article XIII shall not
eliminate or limit the liability of a director to the
extent provided by applicable law (i) for any breach
of the director's duty of loyalty to the corporation
3
<PAGE>
or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of the State of Delaware,
or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to
or repeal of this Article XIII shall apply to or have
any effect on the liability or alleged liability of
any director of the corporation for or with respect to
any acts or omissions of such director occurring prior
to such amendment or repeal.
ARTICLE VII
SECTION 7.1 INDEMNIFICATION.
7.1.1 ACTIONS, SUITS, OR PROCEEDINGS OTHER THAN
BY OR IN THE RIGHT OF THE CORPORATION. The corporation
shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of the corporation) by reason of the fact that he or
she is or was a director, officer, employee or agent
of the corporation, or is or was serving at the
request of the corporation as a director, officer,
employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in
such capacity, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on
his or her behalf in connection with such action, suit
or proceeding and any appeal therefrom, if he or she
acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect
to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which
he or she reasonably believed to be in, or not opposed
to, in the best interests of the corporation and, with
respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct
was unlawful.
7.1.2 ACTIONS OR SUITS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall indemnify any
person who was or is a party or is threatened to be
made a party to any threatened, pending or completed
action or suit by or in the right of the corporation
to procure a judgment in its factor by reason of the
fact that he or she is or was a director, officer,
employee or agent of the corporation or is or was
serving or has agreed to serve at the request of the
corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action
alleged to have been taken or omitted in such
capacity, against expenses (including attorneys' fees)
actually and reasonably incurred by him or her or on
his or her behalf in connection with the defense or
settlement of such action or suit and any appeal
therefrom, if he or she acted in good faith and in a
manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation,
except that no indemnification shall be made in
respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the
corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of such
liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which
the Court of Chancery or such other court shall deem
proper.
7.1.3 INDEMNIFICATION FOR COSTS, CHARGES AND
EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the
other provisions of this Section 7.1, to the extent
that a director, officer, employee or agent has been
4
<PAGE>
successful, on the merits or otherwise, including,
without limitation, to the extent permitted by
applicable law, the dismissal of an action without
prejudice, in defense of any action, suit or
proceeding referred to in Sections 7.1.1 and 7.1.2, or
in defense of any claim, issue or matter therein, he
or she shall be indemnified against all costs, charges
and expenses (including attorneys' fees) actually and
reasonably incurred by him or her or on his or her
behalf in connection therewith.
7.1.4 DETERMINATION OF RIGHT TO INDEMNIFICATION.
Any indemnification under Section 7.1.1 and 7.1.2,
(unless ordered by a court) shall be paid by the
corporation, if a determination is made (a) by the
board of directors by a majority vote of the directors
who were not parties to such action, suit or
proceeding, or (b) if such majority of disinterested
directors so directs, by independent legal counsel in
a written opinion, or (c) by the stockholders, that
indemnification of the director or officer is proper
in the circumstances because he or she has met the
applicable standard of conduct set forth in Section
7.1.1 and 7.1.2.
7.1.5 ADVANCE OF COSTS, CHARGES AND EXPENSES.
Expenses (including attorneys' fees) incurred by a
person referred to in Sections 7.1.1 and 7.1.2 in
defending a civil, criminal, administrative or
investigative action, suit or proceeding shall be paid
by the corporation in advance of the final disposition
of such action, suit or proceeding; PROVIDED, HOWEVER,
that the payment of such costs, charges and expenses
incurred by a director or officer in his or her
capacity as a director or officer (and not in any
other capacity in which service was or is rendered by
such person while a director or officer) in advance of
the final disposition of such action, suit or
proceeding shall be made only upon receipt of an
undertaking by or on behalf of the director or officer
to repay all amounts so advanced in the event that it
shall ultimately be determined that such director or
officer is not entitled to be indemnified by the
corporation as authorized in this Article VII. Such
costs, charges and expenses incurred by other
employees and agents may be so paid upon such terms
and conditions, if any, as the majority of the
directors deems appropriate. The majority of the
directors may, in the manner set forth above, and upon
approval of such director or officer of the
corporation, authorize the corporation's counsel to
represent such person, in any action, suit or
proceeding, whether or not the corporation is a party
to such action, suit or proceeding.
7.1.6 PROCEDURE FOR INDEMNIFICATION. Any
indemnification under Sections 7.1.1, 7.1.2 and 7.1.3,
or advance of costs, charges and expenses under
Section 7.1.5, shall be made promptly, and in any
event within 60 days, upon the written request of the
director, officer, employee or agent. The right to
indemnification or advances as granted by this Article
VII shall be enforceable by the director, officer,
employee or agent in any court of competent
jurisdiction, if the corporation denies such request,
in whole or in part, or if no disposition thereof is
made within 60 days. Such person's costs and expenses
incurred in connection with successfully establishing
his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by
the corporation. It shall be a defense to any such
action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses
under Section 7.1.5, where the required undertaking,
if any, has been received by the corporation) that the
claimant has not met the standard of conduct set forth
in Sections 7.1.1 and 7.1.2, but the burden of proving
such defense shall be on the corporation. Neither the
failure of the corporation (including its board of
directors, its independent legal counsel and its
stockholders) to have made a determination prior to
the commencement of such action that indemnification
of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct
set forth in Sections 7.1.1 and 7.1.2, nor the fact
that there has been an actual determination by the
corporation (including its board of directors, its
independent legal counsel and its stockholders) that
the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a
presumption that the claimant has not met the
applicable standard of conduct.
5
<PAGE>
7.1.7 SETTLEMENT. The corporation shall not be
obligated to reimburse the costs of any settlement to
which it has not agreed. If in any action, suit or
proceeding, including any appeal, within the scope of
Sections 7.1.1 and 7.1.2, the person to be indemnified
shall have unreasonably failed to enter into a
settlement thereof offered or assented to by the
opposing party or parties in such action, suit or
proceeding, then, notwithstanding any other provision
hereof, the indemnification obligation of the
corporation to such person in connection with such
action, suit or proceeding shall not exceed the total
of the amount at which settlement could have been made
and the expenses incurred by such person prior to the
time such settlement could reasonably have been
effected.
SECTION 7.2 SUBSEQUENT AMENDMENT. No amendment,
termination or repeal of this Article VII or of
relevant provisions of the Delaware General
Corporation Law or any other applicable law shall
affect or diminish in any way the rights of any
director or officer of the corporation to
indemnification under the provisions hereof with
respect to any action, suit or proceeding arising out
of, or relating to, any actions, transactions or facts
occurring prior to the final adoption of such
amendment, termination or repeal.
SECTION 7.3 OTHER RIGHTS; CONTINUATION OF RIGHT
TO INDEMNIFICATION. The indemnification provided by
this Article VII shall not be deemed exclusive of any
other rights to which a director, officer, employee or
agent seeking indemnification may be entitled under
any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and
as to action in any other capacity while holding
office or while employed by or acting as agent for the
corporation, and shall continue as to a person who has
ceased to be a director, officer, employee or agent,
and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. Nothing
contained in this Article VII shall be deemed to
prohibit, and the corporation is specifically
authorized to enter into, agreements with officers and
directors providing indemnification rights and
procedures different from those set forth herein. All
rights to indemnification under this Article VII shall
be deemed to be a contract between the corporation and
each director or officer of the corporation who serves
or served in such capacity at any time while this
Article VII is in effect. The corporation shall not
consent to any acquisition, merger, consolidation or
other similar transaction unless the successor
corporation assumes by operation of law or by
agreement the obligations set forth in this Article
VII.
SECTION 7.4 INSURANCE. The corporation shall
have the power to purchase and maintain insurance on
behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or
other enterprise against any liability asserted
against him or her and incurred by him or her in any
such capacity, or arising out of his or her status as
such, whether or not the corporation would have the
power to indemnify him or her against liability under
this Article VII.
SECTION 7.5 CERTAIN DEFINITIONS. For purposes of
this Article VII:
(i) references to "the corporation"
shall include, in addition to the resulting
corporation, any constituent corporation
(including any constituent of a constituent)
absorbed in a consolidation or merger which,
if its separate existence had continued,
would have had the power and authority to
indemnify its directors, officers, employees
or agents, so that any person who is or was a
director, officer, employee or agent of such
constituent corporation, or is or was serving
at the request of such constituent
corporation as a director, officer, employee
or agent of another corporation, partnership,
joint venture, trust or other enterprises,
shall stand in the same position under this
Article VII with respect to the resulting or
surviving corporation as he or she would have
6
<PAGE>
with respect to such constituent corporation
if its separate existence had continued;
(ii) references to "other enterprises"
shall include employee benefit plans;
(iii) references to "fines" shall
include any excise taxes assessed on a person
with respect to an employee benefit plan;
(iv) references to "serving at the
request of the corporation" shall include any
service as a director, officer, employee or
agent of the corporation which imposes duties
on, or involves services by, such director,
officer, employee or agent with respect to an
employee benefit plan, its participants or
beneficiaries; and
(v) a person who acted in good faith
and in a manner he or she reasonably believed
to be in the interest of the participants and
beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner
"not opposed to the best interests of the
corporation," as referred to in this Article
VII.
SECTION 7.6 SAVING CLAUSE. If this Article VII
or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each
director or officer of the corporation as to any
costs, charges, expenses (including attorney's fees),
judgments, fines and amounts paid in settlement with
respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative,
including an action by or in the right of the
corporation, to the full extent permitted by any
applicable portion of this Article VII that shall not
have been invalidated and to the full extent permitted
by application law.
SECTION 7.7 SUBSEQUENT LEGISLATION. If the
Delaware General Corporation Law is amended after the
date hereof to further expand the indemnification
permitted to directors and officers of the
corporation, then the corporation shall indemnify such
person to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following the signature page in
this Registration Statement, which Exhibit Index is incorporated
herein by reference.
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 the Registration
Statement to include: (i) 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 which, individually or in the
aggregate, represent a fundamental change in the information
set forth in the Registration Statement; and (iii) 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 provisions (i) and (ii) of
this undertaking are inapplicable if the information to be
filed thereunder is contained in periodic reports filed by the
7
<PAGE>
Company pursuant to Sections 13 or 15(d) of the Securities
Exchange Act of 1934 and incorporated by reference into 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 provision,
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.
8
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements of filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunder duly authorized, in the City of Ottawa, State of Illinois, on
December 7, 1999.
UNIONBANCORP, INC.
By: /s/ R. SCOTT GRIGSBY
------------------------------------------
R. Scott Grigsby
Chairman of the Board, Chief Executive
Officer and Director
By: /s/ CHARLES J. GRAKO
------------------------------------------
Charles J. Grako
President and Chief Financial Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints R. Scott Grigsby and Charles J.
Grako, and each of them, his true and lawful attorney-in-fact and agent,
each with full power of substitution and re-substitution, for him and in
his name, place and stead, in any and all capacities to sign any or all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or any of them, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933,
this Registration Statement was signed by the following persons in the
capacities indicated on December 7, 1999.
Signature Title
--------- -----
Chairman of the Board, Chief
/s/ R. Scott Grigsby Executive Officer, and Director
/s/ Charles J. Grako President and Chief Financial Officer
/s/ Richard J. Berry Director
/s/ Walter E. Breipohl Director
/s/ L. Paul Broadus Director
/s/ John Michael Daw Director
9
<PAGE>
Robert J. Doty Director
/s/ Jimmie D. Lansford Director
/s/ Lawrence J. McGrogan Director
Joseph D. O'Brien, Jr. Director
/s/ I. J. Reinhardt, Jr. Director
John A. Shinkle Director
Scott C. Sullivan Director
John A. Trainor Director
10
<PAGE>
UNIONBANCORP, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Incorporated
Herein by Filed Sequential
Exhibit No. Description Reference To Herewith Page No.
- ------------------- ------------------------------- ----------------------------- -------------------- --------------------
<S> <C> <C> <C> <C> <C>
4.1 Certificate of Incorporation Exhibit 3.1 to the
of UnionBancorp, Inc. Registration Statement on
Form S-1 filed with the
Commission by UnionBancorp,
Inc. on August 9, 1996, as
amended (SEC File No. 333-9891)
4.2 Bylaws of UnionBancorp, Inc. Exhibit 3.2 to the
Registration Statement on
Form S-1 filed with the
Commission by UnionBancorp,
Inc. on August 9, 1996, as
amended (SEC File No.
333-9891)
4.3 Specimen Stock Certificate of Exhibit 4.1 to the
UnionBancorp, Inc. Registration Statement on
Form S-1 filed with the
Commission by UnionBancorp,
Inc. on August 9, 1999, as
amended (SEC File No. 333-9891)
5.1 Opinion of Barack Ferrazzano X 12
Kirschbaum Perlman &
Nagelberg
10.1 UnionBancorp, Inc. 1999 X 13
Non-Qualified Stock Option
Plan
10.2 Form of Stock Option Agreement X 20
23.1 Consent of Crowe Chizek & X 23
Company LLP
23.2 Consent of Barack Ferrazzano Included in
Kirschbaum Perlman & Exhibit 5.1
Nagelberg
24.1 Power of Attorney Included on the
Signature Page to
this Registration
Statement
</TABLE>
11
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG 333 WEST
WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
Telephone (312) 984-3100
Facsimile (312) 984-3150
December 7, 1999
UnionBancorp, Inc.
122 West Madison Street
Ottawa, Illinois 61350
Re: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to UnionBancorp, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), registering the offer and sale
of up to 50,000 of the Company's common shares, $1.00 par value (the "Shares"),
pursuant to the Company's 1999 Non-Qualified Stock Option Plan (the "Plan"). In
so acting, we have examined and relied upon the originals, or copies certified
or otherwise identified to our satisfaction, of such records, documents and
other instruments as in our judgment are necessary or appropriate to enable us
to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when the Registration Statement becomes effective and the
Shares have been issued in accordance with the Plan, the Shares will be validly
issued, fully paid and nonassessable.
With respect to the opinions expressed above, we are qualified to
practice law in the State of Illinois and express no opinion concerning any law
other than the laws of the State of Illinois, the General Corporation Law of the
State of Delaware and the laws of the United States of America.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In giving the
foregoing consents, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Act, or the rules and
regulations of the Commission promulgated thereunder.
This opinion is being furnished to you solely for your benefit in
connection with the transactions set forth above. It may not be relied upon by,
nor a copy of it delivered to any other party, without our prior written
consent. This opinion is based upon our knowledge of the law and facts as of the
date hereof, and we assume no duty to communicate with you with respect to any
matter that comes to our attention hereafter.
Very truly yours,
/s/ BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG
-----------------------------------------------------
BARACK FERRAZZANO KIRSCHBAUM PERLMAN & NAGELBERG
12
UNIONBANCORP, INC.
1999 NON-QUALIFIED STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The UNIONBANCORP, INC. 1999 NON-QUALIFIED STOCK OPTION PLAN (hereinafter
referred to as the "Plan") is intended to provide a means whereby all employees
and certain directors of UNIONBANCORP, INC. and its Related Corporations
(hereinafter collectively referred to as the "Company") may sustain a sense of
proprietorship and personal involvement in the continued development and
financial success of the Company, and to encourage them to remain with and
devote their best efforts to the business of the Company, thereby advancing the
interests of the Company and its shareholders. Accordingly, the Company may
permit employees and Eligible Directors to acquire common stock of the Company
(hereinafter referred to as "Shares") or otherwise participate in the financial
success of the Company, on the terms and conditions established herein.
2. DEFINITIONS
The following terms shall be defined as set forth below:
a. BOARD. Shall mean the Board of Directors of the Company.
b. CAUSE. Shall have the meaning provided under an employment
agreement between an employee and the Company, or if there is no such agreement,
Cause for termination shall exist if:
(i) The Board or any bank regulatory agency determines that
the optionee has committed an act or acts of dishonesty.
(ii) The optionee is convicted in a judicial proceeding of an
offense involving moral turpitude.
(iii) The optionee improperly discloses or uses any
confidential information of the Company.
(iv) The optionee repeatedly and willfully fails or refuses
to perform his or her duties.
(v) The optionee grossly neglects his or her duties.
(vi) The optionee fails or refuses to comply with the
policies, standards and regulations of the Company which
from time to time may be established.
13
<PAGE>
(vii) The optionee engages in any activities detrimental to
the reputation of the Company, including but not limited
to activities involving a conflict of interest.
(viii) The optionee conducts himself or herself in an
unethical, immoral or fraudulent manner or in a manner
which causes him or her to be held in public ridicule or
scorn or causes a public scandal.
c. CHANGE OF CONTROL. Shall mean:
(i) the consummation of the acquisition by any person (as
such term is defined in Section 13(d) or 14(d) of the
`34 Act of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the `34 Act) of
thirty-three percent (33%) or more of the combined
voting power of the then outstanding voting securities
of the Company; or
(ii) the individuals who, immediately prior to a Transaction,
are members of the Board cease as a result of, or in
connection with, the Transaction to constitute a
majority of the Board or any successor to the Company,
unless the election, or nomination for election by the
stockholders, of any new director was approved by a vote
of a majority of the Board, in which case such new
director shall, for purposes of the Plan, be considered
as a member of the Board; or
(iii) approval by stockholders of the Company of: (1) a merger
or consolidation if the stockholders immediately before
such merger or consolidation do not as a result of such
merger or consolidation own, directly or indirectly,
more than sixty-seven percent (67%) of the combined
voting power of the then outstanding voting securities
of the entity resulting from such merger or
consolidation, in substantially the same proportion as
their ownership of the combined voting power of the
voting securities of the Company outstanding immediately
before such merger or consolidation; or
(iv) the Company's complete liquidation or dissolution or
other disposition of all or substantially all of the
assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because thirty-three percent (33%) or more of the
combined voting power of the then outstanding securities of the Company
are acquired by: (1) a trustee or other fiduciary holding securities
under one or more employee benefit plans maintained for employees of
the Company; or (2) any corporation which, immediately prior to such
acquisition, is owned directly or indirectly by the stockholders of the
Company in the same proportion as their ownership of stock immediately
prior to such acquisition.
14
<PAGE>
d. CODE. Shall mean the Internal Revenue Code of 1986, and any
amendments thereto.
e. COMMITTEE. Shall mean the Compensation Committee of the Board.
f. ELIGIBLE DIRECTOR. Shall mean any director of any subsidiary of the
Company who has not received awards under the Company's 1993 Stock Option Plan.
g. ERISA. Shall mean the Employee Retirement Income Security Act of
1974, and any amendment thereto.
h. OPTION. Shall mean the right to purchase Shares as granted under the
Plan.
i. RELATED CORPORATION. Shall mean a corporation which would be a
parent or subsidiary corporation with respect to the Company as defined in
Section 424(e) or (f), respectively, of the Code.
j. `33 ACT. Shall mean the Securities Act of 1933, and any amendments
thereto.
k. `34 ACT. Shall mean the Securities Exchange Act of 1934 and any
amendments thereto.
l. TRANSACTION. Shall mean any tender offer or exchange offer, or
merger or other business combination, sale of assets of the Company or contested
election of its Board, or any combination of the foregoing.
3. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee which shall be comprised of at
least two (2) non-employee disinterested directors appointed by the Board. A
disinterested director is any member of the Board who within the prior year has
not been, and is not being, granted any awards related to the Shares under the
Plan or any other plan of the Company or any related corporation except for
awards which: (i) are calculated in accordance with a formula as contemplated in
paragraph (c)(ii) of Rule 16b-3 under the Securities Exchange Act of 1934 ("Rule
16b-3"); (ii) result from participation in an ongoing securities acquisition
plan meeting the conditions of paragraph (d)(2) of Rule 16b-3; or (iii) arise
from an election by a director to receive all or part of his Board fees in
securities. The Committee shall have sole authority to:
(i) select the employees and Eligible Directors to whom
Shares shall be sold under the Plan;
(ii) establish the number of such Shares that may be sold to
each employee and Eligible Director and the time when
certificates for such Shares shall be issued;
(iii) prescribe the legend to be affixed to the certificate
representing such Shares;
15
<PAGE>
(iv) interpret the Plan; and
(v) adopt such rules, regulations, forms and agreements, not
inconsistent with the provisions of the Plan, as it may
deem advisable to carry out the Plan.
All decisions made by the Committee in administering the Plan shall be subject
to Board review.
4. SHARES SUBJECT TO THE PLAN
The aggregate number of Shares that may be available for acquisition by
employees and Eligible Directors under the Plan shall be 50,000 Shares. Any
Shares that remain unissued at the termination of the Plan shall cease to be
subject to the Plan, but until termination of the Plan, the Company shall at all
times make available sufficient Shares to meet the requirements of the Plan.
5. STOCK OPTIONS
a. GRANT OF OPTIONS. The Company may issue options to purchase Shares to
employees and Eligible Directors under the Plan. The grant of each Option shall
be confirmed by a stock option agreement that shall be executed by the Company
and the optionee as soon as practicable after such grant. The stock option
agreement shall expressly state or incorporate by reference the provisions of
the Plan.
b. TERMS OF OPTIONS. Except as provided in Subparagraph (c) below, each
Option granted under the Plan shall be subject to the terms and conditions set
forth by the Committee in the stock option agreement including, but not limited
to, option price, option vesting and option term.
c. ADDITIONAL TERMS. Each Option shall be subject to the following terms
and conditions:
(i) WRITTEN NOTICE. An Option may be exercised only by
giving written notice to the Company specifying the
number of Shares to be purchased. An Option may not be
exercised for fewer than fifty (50) Shares.
(ii) METHOD OF EXERCISE. The aggregate Option price shall be
paid in cash or a personal check or a combination of
cash and a personal check.
(iii) TERM OF OPTION. No Option may be exercised more than ten
(10) years after the date of grant. No Option may be
exercised more than three (3) months after the optionee
terminates employment with the Company or, as
applicable, service on the board of directors of a
subsidiary of the Company, except in the event of
disability or death as provided in Subparagraph (c)(iv)
below.
16
<PAGE>
(iv) DISABILITY OR DEATH OF OPTIONEE. If an optionee
terminates employment or, as applicable, terminate
service on the board of directors of a subsidiary of the
Company, due to disability, as provided under Company
plans or programs, or death prior to exercise in full of
any Options, he or she or his or her beneficiary,
executor, administrator or personal representative shall
have the right to exercise the Options within a period
of twelve (12) months after the date of such termination
to the extent that the right was exercisable at the date
of such termination as provided in the stock option
agreement, or subject to such other terms as may be
determined by the Committee.
(v) TRANSFERABILITY. No Option may be transferred, assigned
or encumbered by an optionee, except by will or the laws
of descent and distribution.
(vi) OPTION PRICE. The Option price per Share shall be 100%
of the fair market value of such Share on the date the
Option is granted.
6. RIGHT OF FIRST REFUSAL
If any Shares issued under the Plan are not readily tradable on an established
market on the date an owner intends to sell such Shares, such owner shall first
offer such Shares to the Company for purchase and the Company shall have thirty
(30) days to exercise its right to purchase such Shares. The owner shall give
written notice to the Company stating that he or she has a bona fide offer for
the purchase of such Shares, stating the number of Shares to be sold, the name
and address of the person(s) offering to purchase the Shares and the purchase
price and terms of payment of such sale. The owner shall be entitled to receive
the same purchase price offered by such person(s) offering to purchase such
Shares. Payment may be in a lump sum or, if the lump sum exceeds $100,000, in
substantially equal annual or more frequent installments over a period not
exceeding five (5) years in the discretion of the Committee. If a method of
deferred payments is selected, the unpaid balance shall earn interest at a rate
that is substantially equal to the rate at which the Company could borrow the
amount due and shall be secured by a pledge of the Shares purchased or such
other adequate security as agreed to by the Company and the owner. For purposes
of this Paragraph, Shares shall be considered not readily tradable on an
established market if such Shares are not publicly tradable or because such
Shares are subject to a trading limitation under any federal or state securities
law or regulation that would make such Shares less freely tradable than stock
not so restricted. For purposes of this Paragraph, an owner shall include any
person who acquires Shares from any other person and for any reason; including,
but not limited to, by gift, death or sale.
7. AMENDMENT OR TERMINATION OF THE PLAN
The Board may amend, suspend or terminate the Plan or any portion thereof at any
time; provided, however, that no such amendment, suspension or termination shall
impair the rights of any individual, without his or her consent, in any award
theretofore made pursuant to the Plan.
17
<PAGE>
8. TERM OF PLAN
The Plan shall be effective upon the date of its adoption by the Board. Unless
sooner terminated under the provisions of Paragraph 7, Shares shall not be
granted under the Plan after the expiration of ten (10) years from the effective
date of the Plan. However, awards may be exercisable after the end of the term
of the Plan.
9. RIGHTS AS SHAREHOLDER
Upon delivery of any Share to an employee or Eligible Director, such employee or
Eligible Director shall have all of the rights of a shareholder of the Company
with respect to such Share, including the right to vote such Share and to
receive all dividends or other distributions paid with respect to such Share.
10. MERGER OR CONSOLIDATION
In the event the Company is merged or consolidated with another corporation and
the Company is not the surviving corporation, the surviving corporation may
agree to exchange options issued under this Plan for options (with the same
aggregate option price) to acquire and participate in that number of shares in
the surviving corporation that have a fair market value equal to the fair market
value (determined on the date of such merger or consolidation) of Shares that
the grantee is entitled to acquire and participate under this Plan on the date
of such merger or consolidation. In the event of a Change of Control, options
shall become immediately and fully exercisable.
11. CHANGES IN CAPITAL AND CORPORATE STRUCTURE
The aggregate number of Shares and interests awarded and which may be awarded
under the Plan and the exercise price of such awards shall be adjusted to
reflect a change in the outstanding Shares of the Company by reason of a
recapitalization, reclassification, reorganization, stock split, reverse stock
split, combination of shares, stock dividend or similar transaction. The
adjustment shall be made in an equitable manner which will cause the awards to
remain unchanged as a result of the applicable transaction.
12. SERVICE
An employee shall be considered to be in the service of the Company or related
corporation as long as he or she remains an employee of the Company or related
corporation. Nothing herein shall confer on any employee the right to continued
service with the Company or related corporation or affect the right of the
Company or related corporation to terminate such service.
13. WITHHOLDING OF TAX
To the extent the award, issuance or exercise of Shares results in the receipt
of compensation by an employee, the Company is authorized to withhold from any
other cash compensation then or thereafter payable to such employee any tax
required to be withheld by reason of the receipt of the compensation.
18
<PAGE>
Alternatively, the employee or Eligible Director may tender a personal check in
the amount of tax required to be withheld.
14. DELIVERY AND REGISTRATION OF STOCK
The Company's obligation to deliver Shares with respect to an award shall, if
the Committee so requests, be conditioned upon the receipt of a representation
as to the investment intention of the individual to whom such Shares are to be
delivered, in such form as the Committee shall determine to be necessary or
advisable to comply with the provisions of the '33 Act or any other federal,
state or local securities legislation or regulation. It may be provided that any
representation requirement shall become inoperative upon a registration of the
Shares or other action eliminating the necessity of such representation under
securities legislation. The Company shall not be required to deliver any Shares
under the Plan prior to (i) the admission of such Shares to listing on any stock
exchange on which Shares may then be listed, and (ii) the completion of such
registration or other qualification of such Shares under any state or federal
law, rule or regulation, as the Committee shall determine to be necessary or
advisable.
19
UNIONBANCORP, INC.
1999 NON-QUALIFIED STOCK OPTION PLAN
STOCK OPTION AGREEMENT
1. A STOCK OPTION to acquire ________________ shares (hereinafter
referred to as "Shares") of Common Stock of UNIONBANCORP, INC. (hereinafter
referred to as the "Company") is hereby granted to ________________________
(hereinafter referred to as the "Optionee"), subject in all respects to the
terms and conditions of the UNIONBANCORP, INC. 1999 NON-QUALIFIED STOCK OPTION
PLAN (hereinafter referred to as the "Plan") and such other terms and conditions
as are set forth herein. All defined terms herein shall have the meaning given
them under the Plan.
2. This Option is not intended to constitute an "incentive stock
option" under Section 422 of the Internal Revenue Code of 1986, as amended.
3. The option price as determined by the Board of Directors of the
Company (the "Board") is __________ Dollars and ____________ Cents ($_______)
per Share.
4. a. This Option may be exercised on or after _______________.
b. In the event of the termination of service of the Optionee
due to death, disability or retirement, as provided under Company plans or
programs, this Option shall become immediately and fully exercisable.
c. In the event of a Change of Control, this Option shall
become immediately and fully exercisable.
d. In the event of the termination of service of the Optionee
for Cause, this Option shall immediately become unexercisable.
5. This Option may not be exercised if the issuance of Shares upon such
exercise would constitute a violation of any applicable federal or state
securities law, or any other valid law or regulation. As a condition to the
exercise of this Option, the Optionee shall represent to the Company that the
Shares being acquired under this Option are for investment and not with a
present view for distribution or resale, unless counsel for the Company is then
of the opinion that such a representation is not required under any applicable
law, regulation or rule of any governmental agency.
6. This Option may not be transferred in any manner, except by will or
the laws of descent and distribution, and may be exercised during the lifetime
of the Optionee only by him or her. The terms of this Option shall be binding
upon the Optionee's executors, administrators, heirs, assigns and successors.
20
<PAGE>
7. This Option may not be exercised more than ten (10) years after the
date indicated below and may be exercised during such term only in accordance
with the terms and conditions set forth in the Plan.
Dated: ___________, 1999.
UNIONBANCORP, INC.
By:
--------------------------------------
Chairman of the Board
21
<PAGE>
ATTEST:
The Optionee acknowledges that he has received a copy of the Plan and
is familiar with the terms and conditions set forth therein. The Optionee agrees
to accept as binding, conclusive, and final all decisions and interpretations of
the Committee. As a condition to the exercise of this Option, the Optionee
authorizes the Company to withhold from any regular cash compensation payable by
the Company any taxes required to be withheld under any federal, state or local
law as a result of exercising this Option.
Dated: _______________________, 1999.
By:
--------------------------------------
22
The Board of Directors
UnionBancorp, Inc.
We consent to the incorporation by reference of our report dated February 5,
1999, relating to the consolidated financial statements of UnionBancorp, Inc.
(the "Company") as of December 31, 1998 and for the year then ended, included in
the Form 10-K, in the Registration Statement on Form S-8 filed by the Company
with the Securities and Exchange Commission on December 8, 1999.
Crowe, Chizek and Company LLP
Oak Brook, Illinois
December 8, 1999
23
