<PAGE> 1
As filed with the Securities and Exchange Commission on September 21, 1998
Registration No. 333-_________
- --------------------------------------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
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
(Address of Principal Executive Offices)(Zip code)
------------------
BAYLAKE CORP. 1993 STOCK OPTION PLAN
(Full title of the plan)
-------------------
Copy to:
Thomas L. Herlache Kenneth V. Hallett, Esq.
BAYLAKE CORP. QUARLES & BRADY
217 North Fourth Avenue 411 East Wisconsin Avenue
Sturgeon Bay, Wisconsin 54235 Milwaukee, Wisconsin 53202
(Name and address of agent for service)
(920) 743-5551
(Telephone number, including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES MAXIMUM AGGREGATE AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE PRICE FEE
---------- ------------- --------- ----- ---
<S> <C> <C> <C> <C>
Common Stock,
$5 par value 300,000 shares (2)(3) $7,794,630(2)(3) $2,300
- ----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Restated to give effect to the Registrant's 1998 50% stock dividend.
Also includes an indeterminate number of additional shares which may be
issuable pursuant to the terms of the 1993 Stock Option Plan, as
amended (the "Plan"), and stock option agreements relating to similar
changes and adjustments with respect to the Registrant's Common Stock.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, based upon the aggregate of (a) an exercise price
of $19.17 with respect to 39,000 shares issuable upon exercise of
options granted in January 1998 under the Plan, and (b) a market price
of $27.00 per share (which is the average of the bid and asked price
of the Registrant's Common Stock on September 14, 1998, as reported in
the Milwaukee Journal Sentinel on September 15, 1998) with respect
to 261,000 shares issuable upon exercise of options to be granted
under the Plan.
(3) The actual offering price will be determined in accordance with the
terms of the Plan. However, with respect to an incentive stock option,
in no event shall such price be less than 100% of the fair market value
of the Registrant's Common Stock on the date on which the option is
granted.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
In accordance with General Instruction E to Form S-8 and because this
Registration Statement only registers additional securities of the same class as
other securities for which a Registration Statement filed on Form S-8 relating
to the same employee benefit plan is effective, the contents of the following
document filed by Baylake Corp. (the "Registrant") with the Securities and
Exchange Commission (Commission File No. 0-8679) is incorporated herein by
reference:
The Registrant's Registration Statement on Form S-8 filed on March 31,
1994 (Registration No. 33-77498) relating to the Registrant's 1993 Stock Option
Plan.
ITEM 8. EXHIBITS.
See the Exhibit Index following the Signatures page to this
Registration Statement, which Exhibit Index is incorporated herein by reference.
-1-
<PAGE> 3
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-8 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 August 18, 1998.
BAYLAKE CORP.
(Registrant)
By:/s/ Thomas L. Herlache
--------------------------------------------
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 Steven D.
Jennerjohn, 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 and on the date indicated.*
/s/ Thomas H. Herlache /s/ John D. Collins
- ------------------------------------ ------------------------------------
Thomas L. Herlache, President, John D. Collins, Director
Chief Executive Officer, Chairman
of the Board and Director /s/ George Delveaux, Jr.
(Principal Executive Officer) ------------------------------------
George Delveaux, Jr., Director
/s/ Steven D. Jennerjohn
- ------------------------------------ /s/ L. George Evenson
Steven D. Jennerjohn, Treasurer ------------------------------------
(Principal Financial Officer L. George Evenson, Director
and Controller)
/s/ Glenn Miller
/s/ Ronald D. Berg ------------------------------------
- ------------------------------------ Glenn Miller, Director
Ronald D. Berg, Director
/s/ Joseph Morgan
/s/ Marie Bertschinger ------------------------------------
- ------------------------------------ Joseph Morgan, Director
Marie Bertschinger, Director
/s/ Ruth Nelson
/s/ Richard A. Braun ------------------------------------
- ------------------------------------ Ruth Nelson, Director
Richard A. Braun, Director
/s/ William C. Parsons
/s/ John W. Bunda ------------------------------------
- ------------------------------------ William C. Parsons, Director
John W. Bunda, Director
*Each of these signatures is affixed as of August 18, 1998.
S-1
<PAGE> 4
BAYLAKE CORP.
(the "Registrant")
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
Exhibit Incorporated by Filed
Number Description Reference to Herewith
4.1 Registrant's Articles X
of Incorporation, as
amended
4.2 Registrant's Bylaws, Exhibit 3.2 to 1993 10-K
as amended
5 Opinion of Counsel X
23.1 Consent of X
Independent
Auditors
23.2 Consent of Counsel Contained in opinion
filed as Exhibit 5
24 Power of Attorney Signatures Page to
this Registration
Statement
99.1 1993 Stock Option X
Plan, as amended
EI-1
<PAGE> 1
EXHIBIT 4.1
(Form S-8)
COMPOSITE RESTATED
ARTICLES OF INCORPORATION
OF
BAYLAKE CORP.
as amended through September 21, 1998
Article 1. The name of the corporation is Baylake Corp.
Article 2. The period of existence shall be perpetual.
Article 3. The purposes shall be that the corporation may engage
in any lawful business authorized by Chapter 180 of
the Wisconsin Statutes.
Article 4. The aggregate number of shares which the corporation
shall have authority to issue is Ten Million
(10,000,000) shares, consisting of one class only,
designated as "common stock" of the par value of five
dollars ($5.00) per share.
Article 5. The preferences, limitations, designation and
relative rights of each class or series of stock, are
no preferences, limitations or variances.
Article 6. Address of the registered office is P.O. Box 9, 217
North Fourth Avenue, Sturgeon Bay, WI 54235.
Article 7. Name of the present registered agent at such address
is T. L. Herlache.
Article 8. The number of directors constituting the board of
directors shall be fixed by by-law.
Article 9. The names of the initial directors are:
Dr. John G. Beck Wesley B. Parsons
C. H. Herlache Ellsworth Peterson
Thomas L. Herlache Otis S. Trodahl
Herbert W. Johnson
1
<PAGE> 2
Article 10. (Other provisions)
Article 11. These articles may be amended in the manner
authorized by law at the time of amendment.
Article 12. The name and address of incorporator (or
incorporators) are:
NAME ADDRESS
C. H. Herlache 215 North Third Avenue
Sturgeon Bay, WI 54235
2
<PAGE> 1
EXHIBIT 5
(Form S-8)
September 17, 1998
Baylake Corp.
217 North Fourth Avenue
Sturgeon Bay, WI 54235
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of Baylake Corp. (the "Company") on Form S-8 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), with
respect to the proposed sale of up to 300,000 shares of Common Stock, $5.00 par
value, of the Company (the "Shares") pursuant to the Company's 1993 Stock Option
Plan , as amended (the "Plan"). We have examined (i) the Registration Statement;
(ii) the Company's Articles of Incorporation and Bylaws, each as amended; (iii)
the Plan; (iv) corporate proceedings relating to the adoption of the Plan, the
50% stock dividend and the issuance of the Shares; and (v) such other documents
and records as we have deemed necessary in order to render this opinion. In
rendering this opinion, we have relied as to certain factual matters on
certificates of officers of the Company and of state officials.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation validly existing under the laws
of the State of Wisconsin.
2. The Shares, when issued and paid for as contemplated by the
Registration Statement and the Plan, will be validly issued,
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
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).
<PAGE> 2
Baylake Corp.
September 15, 1998
Page 2
We 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
(Form S-8)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Baylake Corp. 1993 Stock Option
Plan, as amended, of our report dated January 22, 1998 with respect to
the consolidated financial statements of Baylake Corp. contained in its
Annual Report on Form 10-K for the year ended December 31, 1997, and
the related notes thereto, filed with the Securities and Exchange
Commission.
/s/ Smith & Gesteland, LLP
Madison, Wisconsin SMITH & GESTELAND, LLP
September 15, 1998
<PAGE> 1
Exhibit 99.1
(Form S-8)
BAYLAKE CORP.
1993 STOCK OPTION PLAN,
AS AMENDED, THROUGH JULY 31, 1998
I. INTRODUCTION
1.01 Purpose. This plan shall be known as Baylake Corp. 1993 Stock
Option Plan (the "Plan"). The purpose of the Plan is to provide incentive for
key employees of Baylake Corp. and any present or future subsidiary to improve
corporate performance on a long-term basis, and to attract and retain key
employees.
1.02 Effective Date. The effective date of the Plan shall be April 20,
1993, subject to approval of the Plan by the shareholders at the 1993 annual
meeting. Options may be granted prior to such shareholder approval, but may not
become exercisable until such shareholder approval is obtained.
II. PLAN DEFINITIONS
2.01 Definitions. For Plan purposes, except where the context clearly
indicates otherwise, the following terms shall have the meanings set forth
below:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(c) "Committee" shall mean the Compensation Committee of the Board, as
described in Section 4.01.
(d) "Company" shall mean Baylake Corp., a Wisconsin corporation.
(e) "Company Stock" shall mean the Common Stock of the Company and such
other stock and securities as may be substituted therefor pursuant to Section
3.02.
(f) "Eligible Employee" shall mean any regular salaried employee of the
Company or a Subsidiary who satisfies all of the requirements of Section 5.01.
(g) "Fair Market Value" on any date shall mean, with respect to Company
Stock, the closing bid price quoted in the NASDAQ National Market System, or as
obtained from a bona fide market maker in such shares.
<PAGE> 2
(h) "Grantee" shall mean any person who has been granted a stock
option, under the Plan.
(i) "Option Period" shall mean the period of time provided pursuant to
Section 6.04 within which a stock option may be exercised.
(j) "Subsidiary" shall mean any corporation now or hereafter in
existence in which the Company owns, directly or indirectly, a voting stock
interest of more than fifty percent (50%).
III. SHARES SUBJECT TO OPTION
3.01 Available Shares. The total number of shares of Company Stock that
may be issued under the Plan to Eligible Employees shall not exceed Six Hundred
Thousand (600,000) shares [reflects subsequent amendment, and automatic
increases due to subsequent stock splits]. Shares subject to and not issued
under an option which expires, terminates or is cancelled for any reason under
the Plan shall become available for the granting of options.
3.02 Changes in the Number or Kind of Available Shares. If any stock
dividend is declared upon the Company Stock, or if there is any stock split,
stock distribution, or other recapitalization of the Company with respect to the
Company Stock, resulting in a split or combination or exchange of shares, the
aggregate number and kind of shares which may thereafter be offered under the
Plan shall be proportionately and appropriately adjusted and the number and kind
of shares then subject to options granted to employees under the Plan and the
per share option price therefor shall be proportionately and appropriately
adjusted, without any change in the aggregate purchase prices to be paid
therefor.
IV. ADMINISTRATION
4.01 Administration by the Committee. The Plan shall be administered by
a Committee designated by the Board to administer the Plan and shall initially
consist of the non-employee members of the Compensation Committee of the Board.
Vacancies shall be filled in the same manner as original appointments. The
Committee shall be constituted so as to permit the Plan to comply with the
provisions of Rule 16b-3 under the Securities Exchange Act of 1934 (or any
successor rule). A majority of the members of the Committee shall constitute a
quorum. The approval of such a quorum, expressed by a vote at a meeting, or the
unanimous consent of all members in writing without a meeting, shall constitute
the action of the Committee and shall be valid and effective for all purposes of
the Plan.
4.02 Committee Powers. The Committee is empowered to adopt such rules,
regulations and procedures and take such other action as it shall deem necessary
or proper for the administration of the Plan and, in its discretion, may modify,
extend or renew any option theretofore granted. The Committee shall also have
authority to interpret the Plan, and the decision of the Committee on any
questions concerning the interpretation of the Plan shall be final and
conclusive. The Committee
<PAGE> 3
may consult with counsel, who may be counsel for the Company, and shall not
incur any liability for any action taken in good faith in reliance upon the
advice of counsel.
Subject to the provisions of the Plan, the Committee shall have full
and final authority, among other things, to:
(a) designate the persons to whom options shall be granted;
(b) grant options in such form and amount as the Committee shall
determine; and
(c) impose such limitations, restrictions and conditions upon any such
option as the Committee shall deem appropriate.
(d) accelerate the exercise date of any options previously granted
under the Plan.
V. PARTICIPATION
5.01 Eligibility. Key employees of the Company and its Subsidiaries
(including officers and employees who may be members of the Board) who, in the
sole opinion of the Committee, contribute significantly to the growth and
success of the Company or a Subsidiary shall be eligible for options to purchase
Company Stock under the Plan. From among all such Eligible Employees, the
Committee shall determine from time to time those Eligible Employees to whom
options shall be granted. No Eligible Employee shall have any right whatsoever
to receive options unless so determined by the Committee.
5.02 No Employment Rights. The Plan shall not be construed as
conferring any rights upon any person for a continuation of employment, nor
shall it interfere with the rights of the Company or any Subsidiary to terminate
the employment of any person or to take any other action affecting such person.
VI. STOCK OPTIONS
6.01 General. Stock options granted under the Plan may be in the form
of incentive stock options (within the meaning of the Code) or nonqualified
stock options. Each option granted under the Plan shall be evidenced by a stock
option agreement between the Company and the Grantee which shall contain the
terms and conditions required by this Article VI, and such other terms and
conditions, not inconsistent herewith, as the Committee may deem appropriate in
each case.
6.02 Option Price. The price at which each share of Company Stock
covered by an option may be purchased shall be determined in each case by the
Committee and set forth in each stock option agreement. Such price shall not be
less than $18.67 per share for options granted prior to April 30, 1993 and
thereafter shall not be less than one hundred percent (100%) of the Fair Market
Value of the Company Stock at the time the option is granted. Employees who own,
directly or
<PAGE> 4
indirectly, within the meaning of Code Section 425(d), more than 10% of the
voting power of all classes of stock of the Company or any parent or subsidiary
corporation shall not be eligible to receive an incentive stock option hereunder
unless the purchase price per share under such option is at least 110% of the
Fair Market Value of the stock subject to the option and such option by its
terms is not exercisable after the expiration of 5 years from the date such
option is granted.
6.03 Date Option Granted. For purposes of the Plan, a stock option
shall be considered as having been granted on the date on which the Committee
authorized the grant of the option, except where the Committee has designated a
later date, in which event the later date shall constitute the date of grant of
the option; provided, however, that in either case notice of the grant of the
option shall be given to the employee within a reasonable time.
6.04 Period for Exercise. Each stock option agreement shall state the
period or periods of time within which the option may be exercised by the
Grantee, in whole or in part, which shall be the period or periods of time as
may be determined by the Committee, provided that:
(a) No option or portion thereof granted under this Plan may be
exercised until at least six months have elapsed from the later of (i) the date
of grant (except in the case of death or disability), or (ii) the date of
shareholder approval of the Plan,
(b) No Option Period for an option may exceed ten (10) years from the
date the option is granted, and
(c) No option may be treated as an incentive stock option unless the
Grantee exercises the option while employed by the Company or a Subsidiary or
within three months after termination of employment, or if termination is caused
by death or disability, within one year after such termination.
6.05 Special Rule for Incentive Stock Options. For so long as Section
422 (or any successor provision) of the Code so provides, the aggregate Fair
Market Value (determined as of the date the incentive stock option is granted)
of the number of shares with respect to which incentive stock options are
exercisable for the first time by a Grantee during any calendar year shall not
exceed One Hundred Thousand Dollars ($100,000) or such other limit as may be
required by the Code.
VII. EXERCISE OF OPTIONS
7.01 Method of Exercise. Subject to Section 6.04, each option may be
exercised in whole or in part from time to time as specified in the stock option
agreement. Each Grantee may exercise an option by giving written notice of the
exercise to the Company, specifying the number of shares to be purchased,
accompanied by payment in full of the purchase price therefor. The purchase
price may be paid in cash, by check, or, with the approval of the Committee, by
delivering shares of Company Stock which have been beneficially owned by the
Grantee, the Grantee's spouse, or both of them for a period of at least six
months prior to the time of exercise ("Delivered Stock") or a
<PAGE> 5
combination of cash and Delivered Stock. Delivered Stock shall be valued at its
Fair Market Value determined as of the date of exercise of the option. No
Grantee shall be under any obligation to exercise any option hereunder.
7.02 Withholding Taxes. Pursuant to applicable federal and state laws,
the Company may be required to collect withholding taxes upon the exercise of an
option. The Company may require, as a condition to the exercise of an option,
that Grantee concurrently pay to the Company the entire amount or a portion of
any taxes which the Company is required to withhold by reason of such exercise,
in such amount as the Company in its discretion may determine. In lieu of part
or all of any such payment, with the approval of the Committee, the Grantee may
elect to pay such amount with Delivered Stock or to have the Company withhold
from the shares to be issued upon exercise of the option that number of shares
having a Fair Market Value equal to the amount which the Company is required to
withhold.
7.03 Extraordinary Corporate Action. Subject to any required action by
the shareholders of the Company, in the event of any recapitalization merger,
consolidation, exchange of shares, spin-off, reorganization, tender offer,
liquidation or other extraordinary corporate action or event, the Committee, in
its sole discretion, shall have the power, prior or subsequent to such action or
event to:
(a) appropriately adjust the number of shares of Company Stock subject
to each stock option, the exercise price per share of Company Stock, and the
consideration to be given or received by the Company upon the exercise of any
outstanding option;
(b) cancel any or all previously granted options, provided that
appropriate consideration is paid to the optionee in connection therewith;
and/or
(c) make such other adjustments in connection with the Plan as the
Committee, in its sole discretion, deems necessary, desirable, appropriate or
advisable; provided, however, that no action shall be taken by the Committee
which would cause Incentive Stock Options granted pursuant to the Plan to fail
to meet the requirements of Section 422 of the Code.
VIII. GENERAL
8.01 Nontransferability. No option granted under the Plan shall be
transferable or assignable by the Grantee except by last will and testament or
the laws of descent and distribution. During the Grantee's lifetime, options
shall be exercisable only by the Grantee or by the Grantee's guardian or legal
representative.
8.02 General Restriction. Each option shall be subject to the
requirement that if at any time the Board or the Committee shall determine, in
its discretion, that the listing, registration, or qualification of securities
upon any securities exchange or under any state or federal law, or the consent
or approval of any government regulatory body, is necessary or desirable as a
condition of,
<PAGE> 6
or in connection with, the granting of such option or the issue or purchase of
securities thereunder, such option may not be exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Board or
the Committee.
8.03 No Rights as Stockholder. The holder of an option shall not have
any rights of a stockholder with respect to the shares subject to the option
until such shares shall have been delivered to him or her.
8.04 Expiration and Termination of the Plan. Options may be granted
under the Plan at any time, and from time to time, prior to April 19, 2003, the
date on which the Plan will expire, except as to options then outstanding under
the Plan, which options shall remain in effect until they have been exercised or
have expired. The Plan may be abandoned or terminated at any time by the Board
of Directors of the Company, except with respect to any options then outstanding
under the Plan.
8.05 Amendments. The Board may from time to time amend, modify, suspend
or terminate the Plan; provided, however, that no such action shall (a) impair
without the Grantee's consent any option theretofore granted under the Plan or
deprive any Grantee of any shares of Company Stock which he or she may have
acquired through or as a result of the Plan or (b) be made without shareholder
approval where such approval would be required as a condition of compliance with
Rule 16b-3.
8.06 Construction. Except as otherwise required by applicable federal
laws, the Plan shall be governed by, and construed in accordance with, the laws
of the State of Wisconsin.
