<PAGE> 1
Registration No.
--------
As filed with the Securities and Exchange Commission on February 10, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAYLAKE CORP.
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1268055
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
217 North Fourth Avenue
Sturgeon Bay, Wisconsin 54235
(920) 743-5551
(Address, including zip code, and telephone number,
including area code, of registrant's principal offices)
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BAYLAKE CORP.
AUTOMATIC DIVIDEND REINVESTMENT PLAN
(Full title of the plan)
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Copy to:
STEVEN D. JENNERJOHN KENNETH V. HALLETT
BAYLAKE CORP. QUARLES & BRADY
217 North Fourth Avenue 411 East Wisconsin Avenue
Sturgeon Bay, Wisconsin 54235 Milwaukee, Wisconsin 53202
(920) 743-5551 (414) 277-5000
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: As soon
after the effective date of this Registration Statement as possible.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [x]
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, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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 a 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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<PAGE> 2
The prospectus included in this Registration Statement is a combined prospectus
as permitted by Rule 429 under the Securities Act of 1933. The prospectus will
cover 99,544 shares of Baylake Corp. Common Stock previously registered and
unissued under Registration Statement No. 33-43880.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed
Maximum Proposed Maximum
Offering Aggregate
Title of Each Class of Securities Amount to be Price Offering Amount of
to be Registered Registered Per Unit Price(3) Registration Fee
---------------- ---------- -------- -------- -------------------
<S> <C> <C> <C> <C>
Common Stock, 50,000 shares(1) (2) $ 1,450,000.00 $ 440.00
$5.00 par value
====================================================================================================================
</TABLE>
(1) The prospectus covers 99,544 shares of Baylake Corp. Common Stock
previously registered and unissued under Registration Statement No.
33-43880. The amount of the filing fee previously paid with the earlier
Registration Statement was $753.91.
(2) Equal to the average price of all shares purchased by the Plan
Administrator with the proceeds of a single cash dividend under the
terms of the Plan.
(3) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(c), based upon $29.00 per share of Baylake Corp.
Common Stock, which was the average of the bid and asked prices of such
stock from independent broker-dealers on February 6, 1998, the last date
such information was available.
<PAGE> 3
PROSPECTUS
BAYLAKE CORP.
Common Stock
($5.00 Par Value)
up to 149,544 Shares
AUTOMATIC DIVIDEND
REINVESTMENT PLAN
Investment of Dividends on Stock
for Shareholders of
Baylake Corp.
This Prospectus sets forth information concerning the Baylake Corp.
Automatic Dividend Reinvestment Plan and the shares of common stock of Baylake
Corp. being offered under the Plan.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been authorized
by Baylake. This Prospectus is not an offer to sell, or a solicitation of an
offer to buy, in any state in which it is unlawful to make such an offer or
solicitation.
The date of this Prospectus is February 10, 1998.
<PAGE> 4
AVAILABLE INFORMATION
Baylake Corp. ("Baylake") is subject to the informational requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy or other information statements and other
information with the Securities and Exchange Commission (the "Commission").
Such reports, proxies, information statements and other information may be
inspected and copied at the public reference facilities maintained by the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York,
10048; copies of such material may also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a web site that contains reports,
proxy and information statements and other information regarding Baylake at
http://www.sec.gov. This Prospectus omits certain information contained in the
Registration Statement which Baylake has filed with the Commission under the
Securities Act of 1933 and to which reference is hereby made for further
information with respect to Baylake and the securities offered hereby.
INCORPORATION BY REFERENCE
The following documents are incorporated by reference into this
Prospectus: (i) Baylake's Annual Report on Form 10-K for the year ended
December 31, 1996, containing certified financial statements of Baylake for
that year; (ii) Baylake's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1997; (iii) Baylake's Current Report on
Form 8-K dated May 23, 1997; (iv) all other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1996; and (v) Baylake's
Amendment No. 1 to Form 10 General Form for Registration of Securities Pursuant
to Section 12(g) of the Exchange Act, filed on August 31, 1994. In addition,
all reports filed by Baylake with the Commission pursuant to Sections 13(a) and
13(c) of the Exchange Act and all definitive proxy statements filed by Baylake
with the Commission pursuant to Section 14 of the Exchange Act and all
documents filed by Baylake with the Commission pursuant to Section 15 of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering contemplated hereby shall be deemed to be
incorporated by reference in the Prospectus and to be a part hereof from the
date of filing of such documents with the Commission.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Prospectus shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this Prospectus
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Baylake will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered upon the oral or written
request of such person, a copy of any and all of the documents which are
incorporated herein by reference (other than exhibits to such documents which
are not specifically incorporated by reference into the text of such document).
Requests should be directed to Baylake's principal executive offices as
follows: Corporate Secretary, Baylake Corp., 217 North Fourth Avenue, Post
Office Box 9, Sturgeon Bay, Wisconsin 54235-0009 (telephone: (920) 743-5551).
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The discussions in this prospectus or any prospectus combined with
this prospectus and any supplement thereto, and in the documents incorporated
herein by reference, which are not historical statements (including those in
the future tense or including terms such as "believe," "expect" and
"anticipate") contain forward-looking statements that involve risks and
uncertainties. Baylake's actual future results could materially differ from
those discussed. Factors that could cause or contribute to such differences
include, but are not limited to, Baylake's future lending and collection
experience, competition from other institutions, changes in the banking
industry and its regulation, needs for technological change, and other factors
including those discussed in Baylake's Management's Discussion and Analysis
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of Financial Conditions and Results of Operations (which is incorporated herein
by reference), as well as those discussed elsewhere in this prospectus, any
prospectus combined with this prospectus and the documents incorporated herein
by reference.
BAYLAKE CORP.
Baylake Corp. ("Baylake") is a bank holding company with its principal
executive offices at 217 North Fourth Avenue, Sturgeon Bay, Wisconsin 54235.
Baylake's telephone number is (920) 743-5551. Baylake's principal subsidiary
is Baylake Bank, a Wisconsin state bank headquartered in Sturgeon Bay,
Wisconsin with offices in northeastern Wisconsin.
USE OF PROCEEDS
Funds received by Baylake in consideration of issuance of common stock
under the Plan will be added to the general funds of Baylake and used as
working capital. To the extent that shares are purchased on the open market,
Baylake will not receive any funds.
EXPERTS
The consolidated financial statements of Baylake incorporated in this
Prospectus by reference have been audited by Smith & Gesteland, independent
accountants to Baylake, as indicated in their reports with respect thereto, and
are incorporated herein by reference in reliance upon the authority of said
firm as experts in giving said reports.
THE PLAN
Baylake Corp.'s Automatic Dividend Reinvestment Plan (the "Plan")
gives shareholders an opportunity to use all of their quarterly Common Stock
dividends to automatically acquire shares of Common Stock, $5 par value
("Common Stock"), of Baylake. Baylake Bank (the Plan "Administrator"), a
subsidiary of Baylake and its corporate transfer agent, administers the Plan
through its trust department and acts as agent for the shareholders.
--------------------------
BENEFITS TO YOU
- Available to all shareholders.
- Regular investment of even modest amounts of dividends.
- Credit for fractional shares.
- Compounding of investment.
- Prompt investment of dividends.
- Long-range cost averaging.
- Simplified record keeping.
- Voluntary termination at any time, except within 15 days of any
dividend payment date.
HOW THE AUTOMATIC DIVIDEND REINVESTMENT PLAN WORKS
1. The Plan is automatic after you enroll.
2. The Administrator receives the dividends on your shares and
buys Baylake Common Stock for you and other participants at the current market
value. Purchases may be directly from Baylake or on the market. Your account
is credited with any resulting full and fractional shares. Dividends are
payable on full and fractional shares held in your account.
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3. A statement of your account will be sent by the Administrator
as soon as practicable after each investment. The statement of account will
detail the dividend paid for the quarter, number of shares purchased, the price
per share and total number of shares accumulated under the Plan as well as
certificate shares held by the participant.
4. The Administrator will hold the shares purchased, but
certificates for full shares will be issued to you upon written request.
5. You may terminate participation at any time, subject to the
Terms and Conditions of the Plan. You will receive a certificate for the full
shares in your account and cash for any fractional shares, based on the then
current market value.
6. The Administrator will vote all shares in your account as
directed by you in your proxy.
7. The Baylake Bank Trust Department, Baylake's transfer agent,
is acting as our Plan Administrator. Communications regarding the
administration of the Plan may be directed to:
Baylake Bank Trust Department
217 North Fourth Avenue
Post Office Box 9
Sturgeon Bay, Wisconsin 54235-0009
Telephone: (920) 743-5551
FEDERAL INCOME TAXES
Although the participant's cash dividends are being reinvested in
additional shares of Baylake Common Stock, they must still be reported as
dividend income for federal income tax purposes. Participation in the Plan
does not relieve participants of any such income taxes which may be payable on
reinvested dividends. Plan participants should consult their personal tax
advisors for specific information on their personal situations.
COST TO YOU
The cost of this service (excluding brokers' fees and commissions, if
any, relating to the market purchase of shares) is borne by Baylake and is an
additional benefit to you, the shareholder.
TO PARTICIPATE IN THE PLAN
All shareholders of record of Baylake are eligible to participate. To
participate in the Plan, simply complete the enclosed authorization form and
mail it to the Administrator in the envelope provided. If you are currently
enrolled in the Plan, you do not need to take any further action unless you
wish to cease participation. If you do not wish to newly enroll, no action is
necessary and you will receive dividends, as declared, by check on shares of
Baylake Common Stock registered in your name. If you wish to cease
participation, please give written notice to the Administrator.
If you wish to newly participate, your participation will commence
with the next dividend payment date ("Quarterly Investment Date") after receipt
of your authorization form, provided it is received by the Administrator at
least 10 business days before that date. Later receipt will delay your
participation until the following Quarterly Investment Date.
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PLAN TEXT
The following Terms and Conditions govern the Plan and the
participants.
1. MANNER OF PARTICIPATION. All shareholders of Baylake may
participate in the Baylake Plan. Under the Plan, dividends on all of the
participant's shares of Baylake Common Stock are reinvested in additional
Common Stock.
2. PURCHASE OF COMMON STOCK BY ADMINISTRATOR. The Administrator
will apply all dividends received to the purchase of Common Stock for the
account of the participant. Common Stock so purchased shall be outstanding
shares acquired in the over-the-counter market or in negotiated transactions
or, at the option of Baylake or if sufficient shares are unavailable for
purchase, treasury or authorized but unissued shares. The purchase of
outstanding shares may be on such terms as to price, delivery and otherwise, as
the Administrator may determine, and subject to any applicable federal
securities laws and guidelines established by the Securities and Exchange
Commission. Treasury or authorized but unissued shares shall be purchased from
Baylake at a price equal to the lowest market asked price in the
over-the-counter market on the Quarterly Investment Date, or, if no such market
exists, the last independent sales price obtained from a broker or dealer (not
affiliated with Baylake) which facilitates trading in Baylake Common Stock.
Cash dividends, both on Common Stock held in the name of the participant and on
any full or fractional shares held under the Plan, will be applied to the
purchase of Common Stock on each Quarterly Investment Date. In addition, any
proceeds from the sale of Common Stock subscription rights received by the
Administrator will be credited to the participant's account with a fractional
share computed to four decimal places. No interest will be paid on funds held
by the Administrator pending investment. In making purchases for the
participant's account, the Administrator may commingle the participant's funds
with those of other stockholders of Baylake participating in the Plan. The
price at which the Administrator shall be deemed to have acquired outstanding
shares for the participant's account shall be the average price of all shares
purchased by the Administrator under the Plan with the proceeds of a single
cash dividend.
3. STATEMENT TO PARTICIPANTS. The Administrator will furnish to
each participant for whom a purchase was made a statement showing transactions
in the participant's account since the preceding purchase and detailing the
dividend paid for the quarter, the number of shares purchased, the price per
share and the total number of shares accumulated under the Plan as well as
certificate shares held by the participant. At the end of each year, the
Administrator will report to each participant the dividends credited to that
participant's account for that year on the shares held under the Plan in the
name of the Administrator's nominee.
4. CUSTODY OF COMMON STOCK AND ISSUANCE OF CERTIFICATES. The
Administrator will hold the shares of all participants in their name without
charge. A participant may, from time to time, make written request of the
Administrator to issue full shares in the participant's name. No fractional
certificates will be issued.
5. COST TO PARTICIPANTS. There is no cost to the participant
other than brokers' fees and commissions, if any, relating to the market
purchase of shares.
6. VOTING OF SHARES HELD UNDER THE PLAN. The Administrator will
vote at stockholders' meetings shares in the participant's account in
accordance with the participant's proxy or other written instructions. All of
a participant's shares, whether certificate shares held by the participant or
credited to the account of the participant under the Plan, will be voted by one
proxy. If the participant does not direct how shares are to be voted, the
Administrator will not vote such shares.
7. TERMINATION OF ACCOUNT. The account of a participant may be
terminated not less than 15 days prior to any Quarterly Investment Date by
written notice of termination to the Administrator. Any such notice received
less than 15 days prior to such Quarterly Investment Date will not be effective
until dividends and other accumulated funds, if any, have been invested and
credited to the account. The Administrator may also terminate the account by
written notice to the participant. Upon termination, a certificate for the
Common Stock of the participant will be issued and delivered to the participant
for full shares. Any fractional interest in a share will be converted to cash
at current market value based on the lowest asked price in the over-the-counter
market on the date of termination or, if no such market exists, the last
independent sales price obtained from a broker or dealer (not affiliated with
Baylake) which facilitates
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trading in Baylake Common Stock. In every case of termination, uninvested
supplemental cash deposits credited to the participant's account will be
distributed in cash. Certificates for fractional shares will not be issued.
8. COMMON STOCK DIVIDENDS AND ISSUANCE OF RIGHTS. Any Common
Stock distributed as dividends or by way of stock split by Baylake on shares
held by the Administrator for the participant will be credited to the
participant's account. In the event that Baylake makes available to holders of
Common Stock subscription rights to purchase additional shares of Common Stock
or other securities, the Administrator will sell the rights accruing to all
shares held by the Administrator for the participants and will apply the net
proceeds of such sale to the purchase of Common Stock in accordance with
Paragraph 2 above. Baylake will notify each participant in advance of any
subscription offer. If a participant does not want the Administrator to sell
rights and invest the proceeds, it will be necessary for that participant to
transfer all full shares held under the Plan to the participant's own name by a
given date. This will permit the participant to exercise, transfer or sell the
rights on such shares.
9. NO RIGHT TO DRAW AGAINST ACCOUNT. The participants will have
no right to draw checks or drafts against their accounts or to give
instructions to the Administrator with respect to any shares or cash held
therein except as expressly provided herein.
10. NOTICE TO PARTICIPANTS. Notices to the participant may be
given by letter addressed to the participant at the last address of record with
Baylake. The participant agrees to give prompt, written notice to Baylake of
any change of address.
11. DISPOSITION OF SHARES. After receipt of notice that a
participant has disposed of all shares registered in the participant's name,
the Administrator may request instructions from the participant as to the
disposition to be made of shares in the participant's account. If the
Administrator is unable to obtain instructions within 30 days after the mailing
of such request, it may terminate the account and have a certificate issued and
delivered for all full shares in the Plan together with cash for any fractional
interest in a share at current market value determined in accordance with
paragraph 7 hereof on the date of termination, or it may, at its discretion,
continue to reinvest the dividends until otherwise instructed.
12. AMENDMENT AND TERMINATION OF PLAN. This Plan may be amended,
supplemented or terminated at any time by Baylake by mailing a notice to the
Administrator and each participant, at his last address of record, at least 30
days prior to the effective date thereof. Baylake shall be under no obligation
to continue to pay dividends to the Administrator under the Plan if it gives
proper notification to each participant and to the Administrator of its intent
to terminate such dividend payments.
13. DUTIES AND RESPONSIBILITIES. Baylake, the Administrator and
their nominees have no responsibility beyond the exercise of ordinary care for
any action taken or omitted pursuant to this Plan, nor shall they have any
duties, responsibilities or liabilities except such as are expressly set forth
herein. Baylake, the Administrator and their nominees shall not be liable
hereunder for any act done in good faith, or for any good faith omission to
act.
14. GOVERNING LAW. This Plan is governed by the laws of the State
of Wisconsin.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Registrant in
connection with the issuance and distribution of the securities are as follows:
<TABLE>
<CAPTION>
Estimated
Item Dollar Amount
- ---- -------------
<S> <C>
Securities and Exchange Commission Registration Fee $ 440
Printing and Engraving Expenses 500
Legal Fees and Expenses 4,000
Accounting Fees and Expenses 2,000
Blue Sky Fees and Expenses 2,000
Miscellaneous 1,060
---------
Total $ 10,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the
Registrant is required to indemnify a director or officer, to the extent such
person is successful on the merits or otherwise in the defense of a proceeding,
for all reasonable expenses incurred in the proceeding if such person was a
party because he or she was a director or officer of the Registrant. In all
other cases, the Registrant is required by Section 180.0851(2) of the WBCL to
indemnify a director or officer against liability incurred in a proceeding to
which such person was a party because he or she was a director or officer of
the Registrant, unless it is determined that he or she breached or failed to
perform a duty owed to the Registrant and the breach or failure to perform
constitutes: (i) a willful failure to deal fairly with the Registrant or its
shareholders in connection with a matter in which the director or officer has a
material conflict of interest; (ii) a violation of criminal law, unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or no reasonable cause to believe his or her conduct was unlawful; (iii)
a transaction from which the director or officer derived an improper personal
profit; or (iv) willful misconduct. Section 180.0858(1) of the WBCL provides
that, subject to certain limitations, the mandatory indemnification provisions
do not preclude any additional right to indemnification or allowance of
expenses that a director or officer may have under the Registrant's articles of
incorporation, bylaws, a written agreement or resolution of the Board of
Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification,
allowance of expenses and insurance to the extent required or permitted under
Sections 180.0850 to 180.0858 of the WBCL for any liability incurred in
connection with a proceeding involving a federal or state statute, rule or
regulation regulating the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or any
person asserting rights on behalf of the corporation or its shareholders, for
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of the
Registrant against whom claims are asserted with respect to the declaration of
an improper dividend or other distribution to shareholders to which they
assented are entitled to contribution from other directors who assented to such
distribution and from shareholders who knowingly accepted the improper
distribution, as provided therein.
The Registrant's bylaws also contain provisions providing for
the indemnification of directors and officers, substantially in accordance with
the provisions of the WBCL. Directors and officers of the Registrant are also
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covered by directors' and officers' liability insurance under which they were
insured (subject to certain exceptions and limitations specified in the policy)
against expenses and liabilities arising out of proceedings to which they are
parties by reason of being or having been directors or officers.
ITEM 16. EXHIBITS.
See the Exhibit Index following the signature page in this
registration statement, which Exhibit Index is incorporated herein by
reference.
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;
(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)(1)(i) and (a)(1)(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 Section 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.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous 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 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.
(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
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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.
[Undertaking (h) is included voluntarily in lieu of disclosure in the
Prospectus which would otherwise be required by Item 13 of Form S-3.]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 City of Sturgeon Bay, State of Wisconsin, on January 20,
1998.
BAYLAKE CORP.
/s/ Thomas L. Herlache
---------------------------------------
By: Thomas L. Herlache, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas L. Herlache and Paul
C. Wickmann, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and any
other regulatory authority, granting unto said attorneys-in-fact and agents,
and each of them, 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 attorneys-in-fact and agents or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities indicated on the 20th day of January, 1998.
/s/ Thomas L. Herlache /s/ George Delveaux
- ------------------------------------ ------------------------------
Thomas L. Herlache, President, George Delveaux, Jr., Director
Chief Executive Officer,
Chairman of the Board, Director
/s/ L. George Evenson
------------------------------
/s/ Steven D. Jennerjohn L. George Evenson, Director
- ------------------------------------
Steven D. Jennerjohn, Treasurer
(Principal Financial Officer
and Controller)
------------------------------
Glenn Miller, Director
/s/ Ronald D. Berg
- ------------------------------------
Ronald D. Berg, Director
/s/ Joseph Morgan
------------------------------
Joseph Morgan, Director
/s/ Marie Bertschinger
- ------------------------------------
Marie Bertschinger, Director
/s/ Ruth Nelson
------------------------------
Ruth Nelson, Director
/s/ Richard A. Braun
- ------------------------------------
Richard A. Braun, Director
/s/ William C. Parsons
------------------------------
William C. Parsons, Director
/s/ John W. Bunda
- ------------------------------------
John W. Bunda, Director
/s/ John D. Collins
- ------------------------------------
John D. Collins, Director
<PAGE> 13
BAYLAKE CORP.
EXHIBIT INDEX
TO
FORM S-3 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
EXHIBIT FILED
NUMBER DESCRIPTION HEREWITH
------ ----------- --------
<S> <C> <C>
4 Automatic Dividend Reinvestment Plan X ("Plan Text" in the
Prospectus)
5 Opinion of Quarles & Brady Regarding Legality of X
Securities Being Registered
23.1 Consent of Smith & Gesteland X
23.2 Consent of Quarles & Brady X (Contained in
Opinion Filed as
Exhibit 5
24 Power of Atorney X (Signatures Page to
this Registration
Statement)
99 Registrant's Letter to Shareholders Regarding X
Participation in the Plan
</TABLE>
EI-1
<PAGE> 1
EXHIBIT 5
(1998 S-3)
[QUARLES & BRADY LETTERHEAD]
February 10, 1998
Baylake Corp.
217 North Fourth Avenue
Sturgeon Bay, Wisconsin 54235
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of Baylake Corp. (the "Company") on Form S-3 (the "Registration
Statement") to be filed under the Securities Act of 1933, as amended (the
"Act"), with respect to the proposed sale by the Company of up to 50,000 shares
of Common Stock, $5.00 par value, of the Company (the "Shares") under the
Company's Automatic Dividend Reinvestment Plan (the "Plan") in the manner set
forth in the Registration Statement and the prospectus constituting a part
thereof (the "Prospectus").
We have examined (i) the Registration Statement, including the
Prospectus, in the form to be filed, (ii) the Company's Articles of
Incorporation and Bylaws, as amended to date, (iii) corporate proceedings
relating to the issuance of the Shares, and (iv) such other documents and
records, and such matters of law and representations from officers and
representatives of the Company, as we have deemed necessary in order to render
this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Wisconsin.
2. The Shares to be sold from time to time pursuant to the Plan
have been duly authorized and, when issued for at least the par value thereof
and as provided in the Registration Statement, will be validly issued and fully
paid and nonassessable by the Company, subject to the personal liability which
may be imposed on shareholders by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts owing to
employees for services performed, but not exceeding six months' service in any
one case. Although Section 180.0622(2)(b) provides that such personal
liability of shareholders shall be "to an amount equal to the par value of
shares owned by them respectively, and to the consideration for which their
shares without par value was issued," the Wisconsin Supreme Court, by a split
decision without a written opinion, has affirmed a judgment holding
shareholders of a corporation liable under the substantially identical
predecessor statute in effect prior to January 1, 1991 (Section 180.40(6)) for
unpaid employee wages to an amount equal to the consideration for which their
par value shares were issued rather than the shares' lower stated par value.
Local 257 of Hotel and Restaurant Employees and
<PAGE> 2
Bartenders International Union v. Wilson Street East Dinner Playhouse, Inc.,
126 Wis. 2d 284, 375 N.W.2d 664 (1985) (affirming the 1983 decision of the
Circuit Court for Dane County, Wisconsin, in Case No. 82-CV-0023).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we are
"experts" within the meaning of Section 11 of the Act, or that we come within
the category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Quarles & Brady
QUARLES & BRADY
<PAGE> 1
EXHIBIT 23.1
[SMITH & GESTELAND, LLP]
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our reports for Baylake
Corp. in this Registration Statement on Form S-3, and in Registration Statement
33-43880 which is deemed modified by this Registration Statement, of our
reports which appear or are incorporated by reference, in Baylake's Annual
Report on Form 10-K for the year ended December 31, 1996, and the references to
our firm under the heading "Experts" in the Prospectus forming part of the
Registration Statements.
Madison, Wisconsin /s/ Smith & Gesteland, LLP
January 15, 1998 SMITH & GESTELAND, LLP
<PAGE> 1
EXHIBIT 99
[BAYLAKE CORP. LETTERHEAD]
February 10, 1998
Dear Shareholder:
Baylake Corp is reinstating the Baylake Dividend Reinvestment Plan to coincide
with dividends payable on March 16, 1998. As a past participant in the Dividend
Reinvestment Plan, we are contacting you to determine your interest in
continuing in the Plan. If you want to reinvest dividends in the purchase of
additional shares of Baylake Corp. stock, you need to take no further action.
If you want to terminate your participation in the Baylake Dividend
Reinvestment Plan, please acknowledge below with your signature. Please return
your acknowledgment of non-participation back to Baylake Bank in the Enclosed
envelope by February 23, 1998.
The Baylake Dividend Reinvestment Plan is described in the enclosed prospectus.
I do not wish to participate in the Baylake Dividend Reinvestment Plan.
____________________________________
Shareholder
Sincerely,
Thomas L. Herlache
Chairman of the Board
