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As filed with the Securities and Exchange Commission on July 7, 1998
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MIDWEST BANC HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3252484
(State or Other Jurisdiction 501 West North Avenue (I.R.S. Employer
of Incorporation or Melrose Park, Illinois 60160 Identification No.)
Organization)
(Address, including zip code of registrant's principal executive office)
--------------------
MIDWEST BANC HOLDINGS, INC.
1996 STOCK OPTION PLAN
(Full title of the plan)
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Robert L. Woods
President and Chief Executive Officer
MIDWEST BANC HOLDINGS, INC.
501 West North Avenue
Melrose Park, Illinois 60160
(708) 865-1053
(Name, address and telephone number, including area code, of agent for service)
Copies To:
Steven J. Gray, Esq.
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
222 N. LaSalle Sreet
Chicago, Illinois 60601
(312) 609-7500
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Amount to Proposed Proposed Maximum Amount of
Title of Securities be Maximum Offering Aggregate Offering Registration
to Be Registered Registered Price Per Share(1) Price (1) Fee
- ----------------------------- ------------------- ----------------------- ------------------------ ------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 500,000 $17.875 $8,937,500 $2,637
========================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Note: The documents containing the information required by this section will
be given to employees eligible to participate in the Midwest Banc
Holdings, Inc. 1996 Stock Option Plan (the "Plan") and are not required
to be filed with the Securities and Exchange Commission (the
"Commission") as a part of the Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Midwest Banc
Holdings, Inc., a Delaware corporation (the "Company") are incorporated, as of
their respective dates, in this Registration Statement by reference:
A. The Prospectus, dated February 23, 1998, filed pursuant to
Rule 424(b)(4) in connection with the Company's Registration
Statement on Form S-1, as amended (Reg. No. 333-42827).
B. All other reports filed by the Company pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934 ("Exchange Act") since February 23, 1998.
C. The description of the Company's Common Stock contained in the
Company's Registration Statement filed pursuant to Section 12
of the Exchange Act on Form 8-A (Registration No. 001-13735)
and any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold are incorporated by reference
in this Registration Statement and are a part hereof from the date of filing
such documents. Any statement 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 such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no Director of
the Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a Director; provided, however,
that Directors will have liability (i) for any breach of a Director's duty of
loyalty to the Company 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 Delaware General Corporation Law ("DGCL"),
or (iv) for any transaction from which the Director derived an improper personal
benefit.
The Company's By-Laws provide that the Company will indemnify, to the
full extent permitted under the DGCL, any person made or threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a Director, officer, employee or agent of the Company, or is
or was serving at the Company's request as a Director, officer, employee or
agent of another corporation or other enterprise against liabilities and
expenses reasonably incurred or paid by such person in connection with such
action, suit or proceeding. Expenses incurred in defending a civil,
2
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criminal, administrative, investigative or other action, suit or proceeding may
be paid by the Company in advance of a final disposition in accordance with the
DGCL. The indemnification and advancement of expenses provided by the By-Laws
are not to be deemed exclusive of any other rights to which any person
indemnified may be entitled under any by-law, statute, agreement, vote of
stockholders, or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and will continue as to a person who has ceased to be such Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. The Company may purchase and
maintain insurance on behalf of any indemnified person against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Company would have the power to indemnify
him against such liability under the By-Laws. The provisions of the By-Laws are
deemed a contract between the Company and each Director, officer, employee and
agent who serves in any such capacity at any time while the By-Laws and relevant
provisions of the DGCL, or other applicable law, if any, are in effect, and any
repeal or modification of any such law or of the By-Laws will not affect any
right or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon such state of facts.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3.1 to
Registration Statement No. 333-42827)
4.2 By-Laws, as amended (incorporated by reference to
Exhibit 3.2 to Registration Statement No. 333-42827)
4.3 Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to Registration
Statement No. 333-42827)
5.1 Opinion of Vedder, Price, Kaufman & Kammholz regarding
the legality of any original issuance of Common Stock
23.1 Consent of Crowe, Chizek and Company LLP
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included
in Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages
of the Registration Statement)
99.1 The Midwest Banc Holdings, Inc. 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.3 to Registration
Statement No. 333-42927)
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;
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(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; and
(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
herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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 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 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Melrose Park, State of Illinois, on this 7th day
of July, 1998.
MIDWEST BANC HOLDINGS, INC.
By:/s/ Robert L. Woods
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Robert L. Woods
President and
Chief Executive Officer
We, the undersigned officers and directors of Midwest Banc Holdings,
Inc., and each of us, do hereby constitute and appoint each and any of Robert L.
Woods and Edward H. Sibbald, our true and lawful attorney and agent, with full
power of substitution and resubstitution, to do any and all acts and things in
our name and behalf in any and all capacities and to execute any and all
instruments for us in our names in any and all capacities, which attorney and
agent may deem necessary or advisable to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission, in connection with this
Registration Statement, including specifically, but without limitation, power
and authority to sign for us or any of us in our names in the capacities
indicated below, any and all amendments (including post-effective amendments)
hereto; and we do hereby ratify and confirm all that said attorney and agent, or
his substitute, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ E.V. Silveri Chairman of the Board July 1, 1998
- --------------------------------
E.V. Silveri
/s/ Robert L. Woods Director, President and July 1, 1998
- ------------------------------- Chief Executive Officer
Robert L. Woods
/s/ Angelo A. DiPaolo Director July 3, 1998
- -------------------------------
Angelo A. DiPaolo
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ Daniel Nagle Director July 6, 1998
- ------------------------------
Daniel Nagle
/s/ Joseph Rizza Director July 2, 1998
- ------------------------------
Joseph Rizza
/s/ LeRoy Rosasco Director July 3, 1998
- ------------------------------
LeRoy Rosasco
/s/ Robert D. Small Director July 2, 1998
- ------------------------------
Robert D. Small
/s/ Leon Wolin Director July 2, 1998
- ------------------------------
Leon Wolin
/s/ Edward H. Sibbald Executive Vice President July 1, 1998
- ------------------------------ and Chief Financial Officer
Edward H. Sibbald
/s/ Daniel R. Kadolph Vice President and July 1, 1998
- ------------------------------ Comptroller
Daniel R. Kadolph
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
4.1 Restated Certificate of Incorporation, as amended (incorporated by
reference to Exhibit 3.1 to Registration Statement No. 333-42827)
4.2 By-Laws as amended (incorporated by reference to Exhibit 3.2 to
Registration Statement No. 333-42827)
4.3 Specimen Stock Certificate (incorporated by reference to Exhibit 4.1
to Registration Statement No. 333-42827)
5.1 Opinion of Vedder, Price, Kaufman & Kammholz regarding the legality
of any original issuance of Common Stock
23.1 Consent of Crowe, Chizek and Company LLP
23.2 Consent of Vedder, Price, Kaufman & Kammholz (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature pages of the Registration
Statement)
99.1 The Midwest Banc Holdings, Inc. 1996 Stock Option Plan (incorporated
by reference to Exhibit 10.3 to Registration Statement No. 333-42827)
7
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EXHIBIT 5.1
[VPKK Letterhead]
July 7, 1998
Midwest Banc Holdings, Inc.
501 West North Avenue
Melrose Park, Illinois 60160
Re: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Midwest Banc Holdings, Inc. (the "Company") with the Securities and Exchange
Commission on or about July 7, 1998 (the "Registration Statement") in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of 500,000 shares of Common Stock, par value $0.01 per share (the
"Shares"), issuable under the Company's 1996 Stock Option Plan (the "Plan").
Based upon the foregoing, and assuming the Shares are issued in
accordance with the Plan, it is our opinion that, after the effectiveness of the
Registration Statement under the Act, the Shares, when issued, will be validly
issued, fully-paid and non-assessable.
The law covered by the opinions expressed herein is limited to the
Federal securities laws of the United States of America and the laws of the
State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
VEDDER, PRICE, KAUFMAN & KAMMHOLZ
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Midwest Banc Holdings, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 16, 1998 except for Note 9, as
to which the date is January 30, 1998 relating to the consolidated financial
statements of Midwest Banc Holdings, Inc. (formerly First Midwest Corporation of
Delaware) and subsidiaries which is included on page F-2 of the Prospectus dated
February 23, 1998 constituting part of the Midwest Banc Holdings Registration
Statement on Form S-1.
Crowe, Chizek and Company LLP
Oak Brook, Illinois
July 7, 1998