As filed the Securities and Exchange Commission on July 10, 1997.
Registration No. 333-
Securities and Exchange Commission
Washington, D.C. 20549
Form S-3
Registration Statement
Under
The Securities Act of 1933
Old Second Bancorp, Inc.
(Exact name of registrant as specified in its charter)
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
Delaware 36-3143493
(State or other jurisdiction of
incorporation or organization) (I.R.S. employer identificiation)
37 South River Street
Aurora, Illinois 60507
(630) 892-0202
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Ronald J. Carlson
37 South River Street
Aurora, Illinois 60507
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies of Communications to:
Eric F. Fess, Esq.
Chapman and Cutler
111 West Monroe
Chicago, Illinois 60603
Approximate date of commencement of proposed sale to public: From time
to time after the Registration Statement becomes effective at the discretion
of the Selling Stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
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, please check the following
box. [ x ]
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 foil 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. [ ]
Calculation of Registration Fee
Title of Securities to be Registered _ Common Stock, without par value
Amount to be Registered _ 111,706 shares
Proposed Maximum Offering Price per Share(l) _ $47.375
Proposed Maximum Aggregate Offering Price(l) _ $5,292,072
Amount of Registration Fee _ $1,654
(l) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933.
<PAGE>
/AA (Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities) /BB (may not be
sold nor may offer to buy be accepted prior to the time the registration
statement becomes effective. This prospectus shall not constitute an
offer to sell or the solicitation of an offer to buy) def
/CC (nor shall there be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such State.)
Subject to Completion, Dated July 10, 1997.
111,706 Shares
Old Second Bancorp, Inc.
Common Stock
This Prospectus relates to 111,706 Shares (the "Shares") of Common
Stock, without par value, (the "Common Stock") of Old Second Bancorp, Inc.,
a Delaware corporation ("Old Second") which are being sold by certain
stockholders of the Company (the "Selling Stockholders"). Old Second will
not receive any of the proceeds from the sale of the Shares offered hereby.
See "Selling Stockholders."
The Common Stock is traded on the Nasdaq National Market System under
the symbol OSBC. On July 2, 1997, the closing price of the Common Stock
on the Nasdaq National Market System was $47.25.
These Securities have not been approved or disapproved by the
Securities and Exchange Commission or any state securities commission, nor
has the securities and Exchange Commission or any state securities
commission passed upon the accuracy or adequacy of this Prospectus. Any
representation To the contrary is A criminal offense.
The Selling Stockholders, or any of them, may sell the Shares from
time to time in transactions on the Nasdaq National Market System or in the
over-the-counter market, or through private sales. All sales made on the
Nasdaq National Market System or in the over-the-counter market shall be
made at the then prevailing price of the Shares on such national market
system or in such over-the-counter market, as applicable; any private sales
will be made at negotiated prices. Sales of the Shares may be made to or
through broker-dealers, and such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholders effecting such sales. The Selling Stockholders and any
broker-dealers who act in connection with sales of Shares may be deemed to
be "underwriters" as that term is defined in the Securities Act of 1933,
as amended (the "Securities Act"), and any commissions received by them
and profit on any resale of the Shares may be deemed to be underwriting
discounts and commissions under the Securities Act. Old Second has agreed
to indemnify the Selling Stockholders and underwriters of the Selling
Stockholders against certain liabilities, including certain liabilities
under the Securities Act, in connection with the registration and the
offering and sale of the Shares offered hereby. See "Manner of Offering."
The date of this Prospectus is July 1997.
<PAGE>
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus, and, if given
or made, such other information or representation must not be relied upon as
having been authorized. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, the Shares in any jurisdiction
where, or to any person to whom, it is unlawful to make such offer or
solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there
has been no change in the affairs of Old Second since the date hereof or that
the information contained herein or therein is correct as of any time
subsequent to the date of such information.
Available Information
Old Second is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy and information statements and other information, including
the documents incorporated by reference herein, can be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549; and at the Commission's regional
offices at Seven World Trade Center, 13th Floor, New York, New York 10048
and Suite 1400, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material can be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission maintains a Website at http:\\www.sec.gov that
contains reports, proxy statements and other information filed by Old Second.
Old Second has filed a registration statement on Form S-3 (herein,
together with all amendments and exhibits, referred to as the "Registration
Statement") under the Securities Act, with respect to the Common Stock being
offered pursuant to this Prospectus. This Prospectus does not contain all of
the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. The Registration Statement may be inspected and copied at the
public reference facilities maintained by the Commission at the addresses
set forth in the preceding paragraph. Statements contained herein
concerning the provisions of any documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
Incorporation of Certain Information by Reference
The following documents, which have been filed by Old Second with the
Commission, are hereby incorporated by reference:
<PAGE>
1. Old Second's Annual Report on Form 10-K for the year ended December
31, 1996 (which incorporates by reference certain information from Old
Second's Proxy Statement relating to the 1996 Annual Meeting of Stockholders).
2. Old Second's Quarterly Report on Form 10-Q for the quarter ended
March 3l, 1997.
3. Old Second's Current Report on Form 8-K dated May 20, 1997.
4. The description of Common Stock contained in Old Second's
registration statement filed pursuant to the Exchange Act, and any amendment
or report filed for the purpose of updating such description.
All documents filed by Old Second pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated herein
by reference. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus and the Registration
Statement of which it is a part to the extent that a statement contained
herein or in a subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein 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
or such Registration Statement.
Old Second will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated herein by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to Ronald J.
Carlson, President, Old Second Bancorp, Inc., 37 South River Street, Aurora,
Illinois 60507, telephone number (630) 892-0202.
Old Second Bancorp, Inc.
Old Second, a Delaware corporation, is a multibank holding company
registered under the BHCA and based in Aurora, Illinois. Old Second owns
100% of the capital stock of The Old Second National Bank of Aurora,
Yorkville National Bank, The Old Second Community Bank of North Aurora, The
Old Second Community Bank of Aurora, Burlington Bank, Kane County Bank and
Trust Company and Bank of Sugar Grove (the "Old Second Subsidiary Banks").
In May 1997, Old Second completed the acquisition of Maple Park Bancshares,
Inc. which owned 100% of the capital stock of the First State Bank of Maple
Park. In June 1997, First State Bank of Maple Park merged with The Old
Second National Bank of Aurora.
<PAGE>
The Old Second National Bank of Aurora (the "Old Second National Bank"),
located at 37 South River Street, Aurora, Illinois, offers complete banking
and trust services for retail, commercial, industrial, and public entity
customers in Aurora, Illinois and the surrounding area. Services include
loans to all customer segments, checking, savings and time deposits; lock box
service and safe deposit boxes; trust and other fiduciary services to
commercial customers and individuals; and other customer services. Old
Second National Bank has two offsite automatic teller machines, and its
customers can use certain other financial institutions' offsite teller
machines to complete deposit, withdrawal, transfers, and other banking
transactions.
The Old Second Community Bank of North Aurora is located at 200 West
John Street in the Village of North Aurora. The Old Second Community Bank of
Aurora is located at 1350 North Farnsworth Avenue, Aurora, Illinois.
Yorkville National Bank is located at 102 E. Van Emmon Street, Yorkville,
Illinois. Burlington Bank is located at 194 S. Main Street, Burlington,
Illinois. Kane County Bank and Trust Company is located at 122 North Main
Street, Elburn, Illinois. Bank of Sugar Grove is located on Cross Street at
Route 47, Sugar Grove, Illinois.
These banks offer banking services for retail, commercial, industrial,
and public entity customers in the Aurora, North Aurora, Yorkville,
Burlington, Elburn, Wasco, Plano, Oswego, Batavia, Sugar Grove, Kaneville,
Ottawa and Maple Park communities and surrounding areas. Services include
loans to all customer segments, checking, savings and time deposits, and other
customer services. With the exception of Yorkville's main banking facility,
these banks have onsite 24-hour automatic teller machines, and their
customers can use certain other financial institutions' offsite teller
machines to complete deposit, withdrawal, transfers, and other banking
transactions. Customers can enjoy "Valley-Wide Banking" at all Old Second
Subsidiary Bank locations. A customer of an Old Second Subsidiary Bank can
transact most business, including checking, savings and personal loan
transactions, at any other Old Second Subsidiary Bank.
Recent Developments
In connection with the acquisition of Maple Park Bancshares, Inc. by Old
Second in May 1997, Old Second agreed, pursuant to a Registration Rights
Agreement dated May 13, 1997 (the "Registration Rights Agreement"), to
register all shares of Common Stock issued to the former Maple Park
Bancshares, Inc. stockholders in exchange for their shares of Maple Park
Bancshares, Inc. These stockholders are identified herein under "Selling
Stockholders."
Proceeds of the Offering
Old Second will not receive any proceeds from the sale of Common Stock
offered hereby.
<PAGE>
Price Range of Common Stock and Dividend Policy
Old Second Common Stock currently trades on the Nasdaq National Market
System under the symbol "OSBC." The following table sets forth the range of
closing prices and dividend information during the periods indicated for 1997,
1996 and 1995.
<TABLE>
1997 High Low Dividends Declared
<S> <C> <C> <C>
First Quarter $48.50 $46.75 $.20
Second Quarter 48.50 46.75 $.20
Third Quarter
(through July 7, 1997) 48.50 46.75 ---
1996 High Low Dividends Declared
First Quarter $37.60 $36.00 $.16
Second Quarter 39.00 38.50 .20
Third Quarter 40.00 38.75 .20
Fourth Quarter 41.50 39.25 .30
1995 High Low Dividends Declared
First Quarter $34.00 $27.20 $.14
Second Quarter 36.00 28.80 .14
Third Quarter 37.00 29.60 .16
Fourth Quarter 41.00 32.80 .28
</TABLE>
The last reported closing price of Old Second Common Stock on July 2,
1997, was $47.25.
Old Second presently expects that it will continue to pay dividends on
the Common Stock in the future at such times and in such amounts as Old
Second's Board of Directors, in its discretion, may determine. For
additional information regarding payment of dividends, see "Description of
Capital Stock_Dividend Rights."
Selling Stockholders
All of the shares of Common Stock being offered hereby are being sold by
the Selling Stockholders. Each of the Selling Stockholders acquired their
shares of Common Stock in connection with the acquisition by Old Second of
Maple Park Bancshares, Inc., consummated in May 1997. After completion of
the offering contemplated hereby, none of the Selling Stockholders will
beneficially own more than 1% of the Common Stock.
<PAGE>
The following table sets forth the name of each Selling Stockholder and
certain information regarding the beneficial ownership of Common Stock as of
July 7, 1997 and as adjusted to reflect the sale of the Shares by the Selling
Stockholders.
<TABLE>
Shares Shares Shares
Name of Owned Prior to Offered Owned after
Selling Stockholder the offering Hereby the offering
<S> <C> <C> <C>
Joe A. Pruess 42,252 42,252 0
Bruce Madden (1) 30,222 30,222 0
Maple Park Bancshares, Inc.
Employee Stock Ownership
Trust 25,790 25,790 0
John F. and Kostia Pappas 2,525 2,525 0
Justin R. Krupp 1,034 1,034 0
Bridget A. Krupp 1,034 1,034 0
Thomas J. Krupp, II 1,034 1,034 0
James C. Krupp 1,034 1,034 0
Vincent and Anna Palazzolo 1,263 1,263 0
William E. Phillips 631 631 0
Leo E. and Patricia Elliott 252 252 0
Edward A. Rosenow 400 400 0
Richard and Kenneth Hintzsche 1,262 1,262 0
Robert R. Bowman 1,039 1,039 0
Mark Ringhouse 391 391 0
Charles J. and Lynn A. Shepard 450 450 0
Erin S. Pruess 384 384 0
Jill E. Pruess 384 384 0
Bertha and Mark A. Williams 136 136 0
Cari L. and Kenneth R. Zwick 136 136 0
Jeffrey S. and Todd E. Madden 53 53 0
Total: 111,706 111,706 0
<FN>
______________________________
(1) Mr. Madden currently serves as Chief Executive Officer of Maple Park
Mortgage Company, a wholly owned subsidiary of Old Second.
</TABLE>
<PAGE>
Description of Capital Stock
The authorized capital stock of Old Second consists of 300,000 shares
of Preferred Stock, without par value, and 6,000,000 shares of Common Stock,
without par value. As of July 7, 1997, there was no Preferred Stock
outstanding and 3,049,190 shares of Common Stock were outstanding.
Dividend Rights
Holders of Common Stock are entitled to receive such dividends as are
declared by its Board of Directors out of funds legally available therefore.
Because Old Second's consolidated net income consists largely of the net
income of the Old Second Subsidiary Banks, Old Second's ability to pay
dividends depends, in part, upon its receipt of dividends from such banks.
Voting Rights - Non-Cumulative Voting
Holders of shares of Common Stock are entitled to one vote for each share
of stock held by them.
The shares of Common Stock do not have cumulative voting rights. This
means that the holders of more than 50% of the shares of Common Stock voting
for the election of directors can elect 100% of the class of directors
standing for election at any meeting if they choose to do so, and in such
event, the holders of the remaining shares voting for the election of
directors will not be able to elect any person or persons to Old Second's
Board of Directors at such meeting.
Preemptive Rights
The holders of Common Stock have no preemptive rights.
Other Matters
The Common Stock has no conversion rights, and is not subject to any
redemption or sinking fund provisions or any further calls or assessments.
The shares of Common Stock currently outstanding are fully paid and
nonassessable.
Subject to the preferential rights, if any, of any preferred stock
that may be issued in the future, holders of shares of Common Stock are
entitled to receive such dividends as may be declared from time to time by
Old Second's Board of Directors from the assets of Old Second legally
available therefor and, upon any liquidation of Old Second, a pro rata share
of all assets of Old Second available for distribution to shareholders.
<PAGE>
Certain Provisions of Old Second's Restated Certificate of Incorporation
Old Second's Restated Certificate of Incorporation (the "Restated
Certificate") and Bylaws differ from the charter of Maple Park in certain
material respects. These differences, which are described below, are
intended to encourage any person interested in acquiring Old Second to
obtain the approval of its Board of Directors and to discourage takeovers
by persons intending to eliminate the remaining stockholders' interest in a
reorganization. Old Second believes that, in such a situation, the ability
of the Board of Directors to represent effectively the interests of its
stockholders will thereby be enhanced. However, a change in control of Old
Second which is opposed by the Board of Directors could be made more
difficult by these provisions, even if such a change were desired by a
majority of the stockholders of Old Second. Old Second is not aware of any
person who intends to acquire Old Second or seek a change in control of Old
Second.
Preferred Stock. Old Second is authorized to issue up to 300,000 shares
of Preferred Stock, without par value (the "Preferred Stock"). No shares of
the Preferred Stock are outstanding. The Preferred Stock is issuable in
series established from time to time by the Board without further action by
the Old Second stockholders. The Board of Directors of Old Second has broad
authority to fix the number of shares included in each series and the
designation, relative powers, preferences and rights, and the qualifications,
limitations or restrictions of each series, including but not limited to
dividend rates, redemption rights, conversion rights, voting rights (not to
exceed one vote per share) and liquidation preferences.
The authorized but unissued shares of Preferred Stock could be used by
incumbent management to make a change in control of Old Second more difficult.
Under certain circumstances such shares could be used to create voting
impediments or to frustrate persons seeking to effect a takeover or otherwise
gain control of Old Second. Such shares could be privately placed with
purchasers who might side with the Board of Directors in opposing a hostile
takeover bid.
Elimination of Stockholder Action by Consent. Pursuant to Delaware law,
unless otherwise provided in the certificate of incorporation, any action
required or permitted to be taken by stockholders may be taken without a
meeting and without a stockholder vote if a written consent setting forth
the action to be taken is obtained. The Restated Certificate provides that
stockholder action may only be taken at an annual or special meeting of
stockholders and prohibits stockholder action by consent.
This provision prevents the holders of a majority of the voting power of
Old Second (or any other stockholders, for that matter) from using the
written consent procedure to take stockholder action (although federal proxy
rules might apply to the solicitation of such consents).
<PAGE>
Classification of the Board of Directors. Article X of the Restated
Certificate provides the following:
(1) Paragraph A provides that the Board shall consist of a minimum of
five and a maximum of twenty-five directors. The Board currently consists of
fourteen members. Paragraph A also authorizes the Board or the stockholders
to determine the number of directors to be elected in the future.
(2) Paragraph B (as discussed below) provides for a classified Board.
(3) Paragraph C (as discussed below) provides that vacancies on the
Board may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, and that a director
chosen to fill a vacancy shall hold office until the expiration of the term
of the class for which such director is chosen.
(4) Paragraph D authorizes vacancies and newly created directorships of
any series of Preferred Stock to be filled by a majority of the directors
elected by the holders of such series then in office or by a sole remaining
director so elected.
(5) Paragraph E provides that, unless provided for in the Bylaws, the
election of directors need not be by written ballot.
(6) Paragraph F (as discussed below) provides for advance notification
of nominations for directors.
(7) Paragraph G (as discussed below) provides that directors of Old
Second may be removed from the Board only for cause and by the affirmative
vote of the holders of 66-2/3% of the then outstanding capital stock eligible
to vote thereon.
(8) Paragraph H provides that the business of Old Second shall be
managed by the Board and authorizes the Board to exercise all powers not
reserved for the stockholders.
(9) Paragraph I authorizes a limit on certain liabilities of directors
of Old Second. See "Limitation of Director Liability."
Classified Board. Article X of the Restated Certificate provides that
the Board be divided into three classes as nearly equal in number as possible.
The provisions of this Article provide that any vacancy in the
membership on the Board, resulting from an increase in the authorized number
of directors, retirement, resignation, removal, or death, will be filled by
the Board acting by a majority of the directors then in office, and any
director so chosen shall serve for the remainder of the then present term of
office of the class in which the vacancy shall have occurred or shall have
been created.
<PAGE>
The provisions of this Article make it more difficult and time-consuming
to change majority control of the Board and thus reduce the vulnerability of
Old Second to an unsolicited proposal for the takeover of Old Second that
does not contemplate the acquisition of all of the Old Second outstanding
shares, or an unsolicited proposal for the restructuring or sale of all or
part of Old Second.
The provisions of this Article may have significant effects on
stockholders' ability to change the composition of the incumbent Board and
to benefit from certain transactions which are opposed by the incumbent Board.
The provisions of this Article may discourage or make more difficult a
proxy contest or the assumption of control by a holder of a substantial block
of the Old Second stock or the removal of the incumbent Board and could
increase the likelihood that incumbent directors will retain their positions.
Advance Notice Nomination of Directors. Paragraph F of Article X of the
Restated Certificate requires any stockholder desiring to nominate a person
to the Board to give not less than fourteen days nor more than sixty days
prior notice of such nomination. Such notice shall contain certain required
information concerning the nominee, including his name, address, principal
occupation and number of shares of stock of Old Second beneficially owned by
such nominee and by the nominating stockholder. Nominations not made in
accordance with the procedure set forth in Article X shall be disregarded.
A possible effect of this provision may be that persons otherwise
qualified to serve as directors and who are proposed for nomination and
election by holders of a majority of the outstanding and voting shares may
not be nominated or elected due to the failure to comply with this
procedural requirement, whether due to inadvertence or otherwise. Such
provision limits the ability of stockholders to nominate persons for the
Board who might be interested in a change in control of Old Second.
Increase in Stockholder Vote Required to Remove Directors. Pursuant to
the Restated Certificate, the vote of the holders of 66-2/3% of the shares
of outstanding capital stock of Old Second eligible to vote thereon are
required to remove a director for cause. These provisions may have
significant effects on stockholders' ability to change the composition of
the incumbent Board and to benefit from certain transactions which are
opposed by the incumbent Board.
Circumvention Provision. Article XI of the Restated Certificate
provides that the anti-takeover provisions may not be amended or repealed
without the affirmative vote of the holders of 75% of the then outstanding
shares of Voting Stock (as defined in Article XII). This provision is
designed to prevent circumvention of the anti-takeover provisions of the
Restated Certificate but would make it more difficult for the stockholders
of Old Second to amend the Restated Certificate if the incumbent Board
opposes such amendment.
Fair Price Provision. Article XII of the Restated Certificate requires
that certain procedural safeguards for the protection of noncontrolling
stockholders be observed by a Related Person (as defined in Article XII) if
<PAGE>
such Related Person seeks to effect a merger or certain other business
combination ("Business Combination") which could eliminate or fundamentally
change the interest of the noncontrolling stockholders. If these procedures
are not complied with, or if the proposed Business Combination is not
approved by a majority of the directors of Old Second who are unaffiliated
with, and not a nominee of, the Related Person and either were members of
the Board prior to the time that the Related Person became a Related Person
or were recommended to succeed a Continuing Director by a majority of
Continuing Directors on the Board at the time of such recommendation (the
"Continuing Directors"), Article XII requires that the Business Combination
with the Related Person be approved by the holders of at least 75% of
the outstanding Voting Stock (the "75% Stockholder Vote Requirement"). In the
event that the requisite approval of the Board was given with respect to a
particular Business Combination or the price criteria and procedural
safeguards were satisfied, only a majority vote of the outstanding Voting
Stock would be required.
Tender offers or other non-open market acquisitions of stock are usually
made at prices above the prevailing market price of a corporation's stock.
In addition, acquisitions of stock by persons attempting to acquire control
through market purchase may cause the market price of stock to reach levels
which are higher than would otherwise be the case.
Article XII may discourage such purchases, particularly those of less
than all Old Second shares, and may thereby deprive holders of the Old
Second's stock of an opportunity to sell their stock at a premium above the
market price. Because of the potentially higher vote requirements for
stockholder approval of any subsequent Business Combination and the
possibility of having to pay a higher price to other stockholders in such a
Business Combination, it may become more costly for a purchaser to acquire
control of Old Second.
Article XII may therefore decrease the likelihood that a tender offer
will be made and, as a result, may adversely affect those stockholders who
would desire to participate in a tender offer. In addition, a Related
Person may be unable, as a practical matter, to comply with all of the
procedural requirements of Article XII. Further, the minimum price required
under Article XII may not necessarily be indicative of market value.
Article XII would also give veto power to the holders of a minority of
the Voting Stock with respect to a Business Combination which is not approved
by a majority of the Continuing Directors but which a majority of
stockholders may believe to be desirable and beneficial. As of December 31,
1996, the directors, executive officers and certain key personnel of Old
Second, as a group, beneficially owned approximately 4.7% of the outstanding
shares of Common Stock. Article XII might have the effect of maintaining the
position of incumbent management and might also have the effect that the
Board would have the power to defeat a Business Combination which is desired
by holders of a majority, but less than 75%, of the Voting Stock.
Nonmonetary Factors Provisions. Article XIII of the Restated
Certificate provides that, in evaluating acquisition proposals, the Board
must take into account not only the consideration to be paid but also
<PAGE>
certain nonmonetary factors set forth in Article XIII. Those factors include:
(a) the adequacy of the amount to be paid in connection with any such
transaction; (b) the social and economic effects of the transaction on Old
Second and its Subsidiaries (as defined in Article XII), the employees,
depositors, loan and other customers and creditors of Old Second and its
Subsidiaries and the other elements of the communities in which Old Second
and its Subsidiaries operate or are located; (c) the business and financial
condition and earnings prospects of the acquiring person or persons,
including, but not limited to, debt service and other existing or likely
financial obligations of the acquiring person or persons, and the possible
effect of such conditions upon Old Second and its Subsidiaries and the other
elements of the communities in which Old Second and its Subsidiaries operate
or are located; (d) the competence, experience, and integrity of the
acquiring person or persons and its or their management; and (e) any
antitrust or other legal or regulatory issues which may be raised by any
such transaction.
Greenmail Prevention Provision. Article XIV of the Restated
Certificate is intended to discourage the speculator who, alone or with
others, accumulates beneficial ownership of a significant block of stock
and then, under the threat of making a tender offer, launching a proxy
contest or instigating some other corporate disruption or upset, succeeds
in extracting from the corporation involved a premium price for its shares,
a tactic which has been dubbed "greenmail."
The provisions would, in general, preclude Old Second from purchasing
any Voting Stock at a per share price in excess of the Fair Market Value (as
defined in Article XII) as of the time of such purchase from a person known
by Old Second to be a Substantial Stockholder (as defined in Article XIV)
unless such purchase has been approved by the affirmative vote of the holders
of at least two-thirds of the Voting Stock held by Disinterested
Stockholders (as defined in Article XIV). The foregoing limitation would
not apply to (1) any purchase pursuant to an offer to purchase which is made
on the same terms and conditions to the holders of all of the outstanding
Voting Stock or (2) any open market purchase that constitutes a Public
Transaction (as defined in Article XIV).
Because this provision is designed to discourage accumulations of large
blocks of Old Second's stock by purchasers whose objective is to have such
stock repurchased by Old Second at a premium, this provision could tend to
reduce the temporary fluctuations in the market price of Old Second's stock
which are caused by accumulations of large blocks of Old Second's stock.
Accordingly, stockholders could be deprived of possible opportunities to
sell their stock at a temporarily higher market price.
Limitations of Director Liability. Paragraph I of Article X of the
Restated Certificate eliminates directors' liability to Old Second or its
stockholders for monetary damages arising out of the directors' breach of
their fiduciary duty of care. This provision does not affect the directors'
liability for monetary damages for breaches of the duty of loyalty, actions
or omissions involving bad faith, knowing violations of the law or
intentional misconduct, paying an illegal dividend, approving an illegal
stock repurchase, or obtaining an improper personal benefit.
<PAGE>
Manner of Offering
The Selling Stockholders, or any of them, may sell the Shares from time
to time in transactions on the Nasdaq National Market System or in the
over-the-counter market, or through private sales. All sales made on the
Nasdaq National Market System or in the over-the-counter market shall be
made at the then prevailing price of the Shares on such national market system
or in such over-the-counter market, as applicable; any private sales will
be made at negotiated prices. Sales of the Shares may be made to or through
broker-dealers, and such broker-dealers may receive compensation in the form
of discounts, concessions or commissions from the Selling Stockholders
effecting such sales. The Selling Stockholders and any broker-dealers who
act in connection with sales of Shares may be deemed to be "underwriters" as
that term is defined in the Securities Act, and any commissions received by
them and profit on any resale of the Shares may be deemed to be underwriting
discounts and commissions under the Securities Act.
The Selling Stockholders have advised Old Second that, during such time
as they may be engaged in a distribution of the Shares, they will comply
with Regulation M, and the rules promulgated thereunder, under the Exchange
Act and, in connection therewith, the Selling Stockholders have agreed not
to engage in any stabilization activity in connection with Old Second's
securities, to furnish to each broker-dealer through which the Shares may be
offered copies of this Prospectus, and not to bid for or purchase any
securities of Old Second or attempt to induce any person to purchase any of
Old Second's securities except as permitted under the Exchange Act. The
Selling Stockholders have also agreed to inform Old Second when the
distribution of the Shares is completed.
Regulation M, and the rules promulgated thereunder, prohibit
participants in a distribution from bidding for or purchasing, for an
account in which the participant has a beneficial interest, any of the
securities that are subject of the distribution. Regulation M also governs
bids and purchases made in order to stabilize the price of a security in
connection with a distribution of the security.
The Registration Rights Agreement provides that any public offering of
the Shares by the Selling Stockholders will terminate on the earlier of (a)
May 13, 1998 or (b) the date on which all Shares have been sold by the
Selling Stockholders. Old Second has agreed with the Selling Stockholders
to prepare and file with the Commission any amendments or supplements to the
Registration Statement and this Prospectus as may be necessary to keep the
Registration Statement effective through such offering period.
The Registration Rights Agreement provides that Old Second indemnify
the Selling Stockholders against certain liabilities, including liabilities
under the Securities Act. The Registration Rights Agreement also provides
for the indemnification of Old Second by the Selling Stockholders for
certain liabilities, including liabilities under the Securities Act. In
addition, under the Registration Rights Agreement, Old Second's obligation
to indemnify extends to those who participate in the distribution of the
Common Stock offered hereby as underwriters for the Selling Stockholders.
Also pursuant to the Registration Rights Agreement, the Selling Stockholder
will pay all applicable stock transfer taxes, brokerage commissions,
<PAGE>
underwriting discounts or commissions and any fees of Selling Stockholder's
counsel and accountants but Old Second has agreed to pay substantially all
fees and expenses incident to the preparation, filing, amending and
supplementing of the Registration Statement of which this Prospectus is a
part.
Validity of the Common Stock
The validity of the Shares will be passed upon for Old Second by
Schanlaber & Reed, A Professional Corporation, Aurora, Illinois.
Experts
The consolidated balance sheets of Old Second Bancorp, Inc. and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for the
two years in the period ended December 31, 1996, incorporated by reference
in Old Second Bancorp, Inc.'s Annual Report (Form 10-K) for the year ended
December 31, 1996 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated by reference
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firms as experts in accounting and auditing.
The consolidated balance sheet of Old Second Bancorp, Inc. as of December 31,
1994 and the related consolidated statements of income, changes in
stockholders' equity and cash flows for the year ended December 31, 1994,
prior to the restatement for the 1995 pooling-of-interest, incorporated by
reference in this Registration Statement, have been audited by Coopers &
Lybrand, L.L.P., independent auditors, as stated in their report, which is
incorporated by reference into this Registration Statement.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given
or made, such information or representations must not be relied upon as
having been authorized. This Prospectus does not constitute an offer to
sell or the solicitation of an offer to buy any securities other than the
securities described in this Prospectus or an offer to sell or the
solicitation of an offer to buy such securities in any circumstances in
which such offer or solicitation is unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder or thereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of Old Second since the date hereof or that the information
contained herein or therein is correct as of any time subsequent to the date
of such information.
___________________
Table of Contents
Prospectus Statement
Prospectus
Page
Available Information 2
Incorporation of Certain Information by Reference 2
Old Second Bancorp, Inc. 3
Recent Developments 4
Proceeds of the Offering 4
Price Range of Common Stock and Dividend Policy 5
Selling Stockholders 5
Description of Capital Stock 7
Manner of Offering 12
Validity of the Common Stock 14
Experts 14
111,706 Shares
Old SecondBancorp, Inc.
Common Stock,without par value
____________, 1997
<PAGE>
II-
Part II
Information Not Required in the Prospectus
Item 14. Other Expenses of Issuance and Distribution.
Old Second estimates that expenses in connection with the offering described
in this Registration Statement, and which will be borne by Old Second, will
be as follows:
<TABLE>
<S> <C>
Registration fee $ 1,654
Printing and engraving expenses 0
Legal fees and expenses 10,000
Accountants' fees and expenses 0
Miscellaneous 0
Total $11,654
</TABLE>
Item 15. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit
the personal liability of a director to the corporation or its stockholders
for monetary damages for breach of the director's fiduciary duty, except (i)
for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions), or (iv)
or any transaction from which the director derived an improper personal
benefit.
Old Second's Restated Certificate includes a provision eliminating the
liability of directors consistent with Section 102(b)(7) of the DGCL.
Reference also is made to Section 145 of the DGCL which provides that a
corporation may indemnify any person, including officers and directors, who
is, or is threatened to be made, a party to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, if such person acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal proceeding,
had no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation may indemnify its officers, directors, employees and
agents in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be
<PAGE>
liable to the corporation. Where an officer, director, employee or agent
is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses
which such officer, director, employee or agent actually and reasonable
incurred in connection therewith.
Old Second's Restated Certificate provides for indemnification of
directors and officers of Old Second to the full extent permitted by the
DGCL. Old Second maintains a directors' liability policy to insure its
liability under the above-described provision of its Restated Certificate and
to insure individual directors against certain obligations not covered by
such provisions.
Item 16. Exhibits.
(5) _ Opinion of Schanlaber & Reed, A Professional Corporation,
regarding the Validity of the Common Stock.
(23) (a) _ Consent of Ernst & Young LLP.
(23) (b) _ Consent of Coopers & Lybrand, LLP.
(23) (c) _ Consent of Schanlaber & Reed, A Professional Corporation
(included in Exhibit 5).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To conclude 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;
<PAGE>
provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if 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 this
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.
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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 15 above,
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
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
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 Aurora, State of Illinois, on July
8, 1997.
Old Second Bancorp, Inc.
By /s/ James E. Benson
Chairman, Chief Executive
Officer and Director
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints James E. Benson and Ronald J. Carlson, and
each or any of them, as his true and lawful attorneys-in-fact and agents,
with full power of substitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments and post-effective
amendments to this Registration Statement, and to file the same with all
exhibits thereto, unto said attorneys-in-fact and agents 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 thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on July 8, 1997 by the
following persons in the capacities indicated.
Signature Title
/s/ James E. Benson Chairman, Chief Executive
James E. Benson Officer and Director
(Principal executive officer)
/s/ Ronald J. Carlson President, Chief Financial
Ronald J. Carlson Officer, Secretary and Director
(Principal financial and accounting officer)
Signature Title
/s/ Gary McCarter
Gary McCarter Director
/s/ D. Chet McKee
D. Chet McKee Director
/s/ Walter Alexander
Walter Alexander Director
/s/ Joanne Hansen
Joanne Hansen Director
/s/ Marvin Fagel
Marvin Fagel Director
/s/ Kenneth Lindgren
Kenneth Lindgren Director
/s/ Jesse Maberry
Jesse Maberry Director
/s/ William Meyer
William Meyer Director
/s/ Alan J. Rassi
Alan J. Rassi Director
/s/ Larry Schuster
Larry Schuster Director
/s/ William B. Skoglund
William B. Skoglund Director
/s/ George Starmann III
George Starmann III Director
<PAGE>
[On Schanlaber & Reed Letterhead]
Exhibit 5
July 8, 1997
Old Second Bancorp, Inc.
Attn: President
37 South River Street
Aurora, Illinois 60507
Re: Old Second Bancorp, Inc.
Form S-3 Registration Statement
Dear Ladies/Gentlemen:
We have acted as counsel for Old Second Bancorp, Inc. ("Old Second") in
connection with the registration statement on Form S-3 (the "Registration
Statement") of Old Second which is being filed with the Securities and
Exchange Commission on July 10, 1997 covering up to 111,706 shares of Old
Second's Common Stock, without par value (the "Shares"), to be sold by
certain stockholders of Old Second (the "Selling Stockholders").
We have examined the Registration Statement. We have further examined
the originals or certified, conformed or reproduced copies of the Restated
Certificate of Incorporation of Old Second, the by-laws and minute books of
Old Second, and such other documents as we deem necessary or appropriate as
the basis for the opinion hereinafter expressed. In connection with this
opinion, we have examined the originals, or certified, conformed or
reproduction copies, of all records, agreements, instruments and documents
as we have deemed relevant. In stating our opinion, we have assumed the
genuineness of all signatures on original or certified copies, the
authenticity of documents submitted to us as originals and the conformity to
originals or certified copies of all copies submitted to us as certified or
reproduction copies.
Based on the foregoing, it is our opinion that all of the Shares, when
sold in accordance with the final Prospectus which is a part of the
Registration Statement, will be legally and validly issued and outstanding,
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and consent to the use of our name under the caption
"Legal Matters" in the Prospectus which is part thereof.
Very truly yours,
SCHANLABER & REED
<PAGE>
exhibit 23(a)
Consent of Independent Auditors
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Old Second
Bancorp, Inc. for the registration of 111,706 shares of its common stock and
to the incorporation by reference therein of our report dated January 16,
1997, with respect to the consolidated financial statements of Old Second
Bancorp, Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended December 31, 1996 filed with the Securities Exchange
Commission.
Ernst & Young, LLP
Chicago, Illinois
July 7, 1997
<PAGE>
exhibit 23(b)
consent of independent accountants
We consent to the incorporation by reference in the registration statement
of Old Second Bancorp, Inc. on Form S-3 to be filed July 10, 1997 of our
report, dated January 13, 1995, on our audit of the consolidated financial
statements of Old Second Bancorp, Inc. for the year ended December 31, 1994,
prior to the restatement for the 1995 pooling-of-interest, which is
incorporated by reference in the Annual Report on Form 10-K for the year
ended December 31, 1996. We also consent to the references to our firm
under the caption "Experts".
Coopers & Lybrand L.L.P.
Chicago, Illinois
July 8, 1997
