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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A12G/A
AMENDMENT NO. 2 TO
REGISTRATION STATEMENT ON FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
First Midwest Bancorp, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 36-3161078
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(State of incorporation or organization) (IRS Employer Identification No.)
300 Park Blvd., Suite 405
P.O. Box 459
Itasca, Illinois 60431 60143-0459
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(Address of principal executive offices) (Zip Code)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Share Purchase Rights
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(Title of Class)
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Item 1. Description of Registrant's securities to be Registered.
On February 15, 1989, the Board of Directors of First Midwest Bancorp,
Inc., a Delaware corporation (the "Company"), declared a dividend of one
preferred share purchase right (a "Right") for each share of common stock,
without par value ("Common Stock"), of the Company held of record at the close
of business on March 1, 1989 (the "Record Date"), or issued thereafter and prior
to the Separation Time (as defined in the Original Rights Agreement described
below). The Rights were issued pursuant to a Rights Agreement, dated as of
February 15, 1989, (the "Rights Agreement"), between the Company and The First
National Bank of Chicago, as rights agent (the "Original Rights Agreement"). On
November 15, 1995 the Company amended and restated the Original Rights Agreement
in its entirety (the "Restated Rights Agreement") and appointed First Midwest
Trust Company (the "Rights Agent") to replace The First National Bank of
Chicago, as Rights Agent. On June 18, 1997, the Company entered into an
Agreement and Plan of Merger (the "SparBank Merger Agreement") with SparBank,
Incorporated, a Delaware corporation ("SparBank"), pursuant to which SparBank
will be merged with and into a wholly owned subsidiary of the Company and
stockholders of SparBank will receive shares of Common Stock with one Right
attached thereto in exchange for their shares of common stock of SparBank (the
"SparBank Merger"). On the same date, in accordance with Sections 5.4 and 5.14
of the Restated Rights Agreement, the Board of Directors adopted a resolution
approving, and the Company and the Rights Agent executed, the First Amendment to
Amended and Restated Rights Agreement (the "June 1997 Amendment"). The Restated
Rights Agreement, as amended by the June 1997 Amendment, is referred to herein
as the "Rights Agreement". The June 1997 Amendment provides generally that no
Separation Time, Stock Acquisition Date, Flip-In Date or Flip-over Transaction
or Event (as such terms are defined below) will be deemed to have occurred
solely by reason of the approval, execution or delivery of the SparBank Merger
Agreement or the consummation of any transactions contemplated by the SparBank
Merger Agreement and makes certain changes to the definition of "Acquiring
Person" in the Rights Agreement. The terms of the Rights, as so amended, are
summarized herein.
Each Right entitles its registered holder to purchase from the Company,
after the Separation Time, one
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one-hundredth of a share of Series A Preferred Stock, without par value (the
"Series A Preferred Stock"), for $100 (the "Exercise Price"), subject to
adjustment. The Rights will be evidenced by the Common Stock certificates
until the close of business on the earlier of the date (either, the
"Separation Time") which is (i) the tenth business day (or such later date as
the Board of Directors of the Company may from time to time fix by resolution
adopted prior to the Separation Time that would otherwise have occurred) after
the date on which any Person (as defined in the Rights Agreement) commences a
tender or exchange offer which, if consummated, would result in such Person's
becoming an Acquiring Person, as defined below, or (ii) the tenth business day
(or such earlier or later date as the Board of Directors of the Company may
from time to time fix by resolution adopted prior to the Flip-in Date (as
defined below) that would otherwise have occurred) after the first date of
public announcement by the Company that such Person has become an Acquiring
Person (the "Flip-in Date"); provided that if a tender or exchange offer
referred to in clause (i) is cancelled, terminated or otherwise withdrawn prior
to the Separation Time without the purchase of any shares of stock pursuant
thereto, such offer shall be deemed never to have been made. An Acquiring
Person is any Person who is the Beneficial Owner (as defined in the Restated
Rights Agreement) of 10% or more of the outstanding shares of Common Stock,
provided, however, such term shall not include (i) any Person who is the
Beneficial Owner of 10% or more of the outstanding Common Stock as of the date
of the Rights Agreement or who shall become the Beneficial Owner of 10% or more
of the outstanding Common Stock solely as a result of an acquisition of Common
Stock by the Company, until such time as such Person acquires additional Common
Stock, other than through a dividend or stock split, (ii) any Person who
becomes an Acquiring Person without any plan or intent to seek or affect
control of the Company if such Person promptly divests sufficient securities
such that such 10% or greater Beneficial Ownership ceases, (iii) any Person who
Beneficially Owns shares of Common Stock consisting solely of (A) shares
acquired pursuant to the grant or exercise of an option granted by the Company
in connection with an agreement to merge with, or acquire, the Company prior to
a Flip-in Date, (B) shares owned by such Person and its Affiliates and
Associates at the time of such grant, (C) shares, amounting to less than 1% of
the outstanding Common Stock, acquired by Affiliates and Associates of such
Person after the time of such grant or (D) shares which are held by such Person
in trust accounts, managed accounts and the like or otherwise held in a
fiduciary capacity, that are beneficially owned by third persons who are not
Affiliates or Associates of such Person or acting together with such Person to
hold shares, or which
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are held by such Person in respect of a debt previously contracted, or (iv) any
Person who is a Cowlin Family Member who Beneficially Owns shares of Common
Stock consisting solely of one or more of (A) shares of Common Stock
Beneficially Owned pursuant to the SparBank Merger Agreement, (B) shares of
Common Stock (or securities convertible into, exchangeable into or exercisable
for Common Stock) Beneficially Owned by a Cowlin Family Member or its Affiliates
or Associates at the time of the execution of the SparBank Merger Agreement, (C)
shares of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) acquired by a Cowlin Family Member or its
Affiliates or Associates after the execution of the SparBank Merger Agreement,
which, in the aggregate, amount to less than 1% of the outstanding shares of
Common Stock or (D) shares of Common Stock acquired by means of a stock dividend
or stock split. For purposes of the Agreement, the term "Cowlin Family Member"
shall mean (i) Geraldine C. Cowlin, (ii) any spouse of Geraldine C. Cowlin,
(iii) any lineal descendants (including descendants by adoption and their
descendants) of Geraldine C. Cowlin or any spouse of any such lineal descendant,
(iv) any estate of, or trust established by, one or more of the persons
described in clauses (i), (ii), and (iii), provided that one or more of the
persons described in clauses (i), (ii), and (iii) or charitable organizations
which qualify as exempt organizations under Section 501(c) or the Internal
Revenue Code of 1986, as amended ("Charitable Organizations"), collectively, are
the beneficiaries of at least 50% of the actuarially-determined beneficial
interests in such estate or trust, (v) any Charitable Organization which is
established by one or more of the persons described in clauses (i), (ii), and
(iii) (a "Family Charitable Organization"), (vi) any corporation of which a
majority of the voting power is held, directly or indirectly, by or for the
benefit of one or more of the persons described in clauses (i), (ii) or (iii),
the estates or trusts described in clause (iv), or Family Charitable
Organizations, or (vii) any partnership or other entity or arrangement of which
a majority of the voting interests are held, directly or indirectly, by or for
the benefit of one or more of the persons described in clauses (i), (ii) or
(iii), the estates or trusts described in clause (iv), or Family Charitable
Organizations. The Rights Agreement provides that, until the Separation Time,
the Rights will be transferred with and
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only with the Common Stock. Common Stock certificates issued prior to the
Separation Time shall evidence one Right for each share of Common Stock
represented thereby and shall contain a legend incorporating by reference the
terms of the Rights Agreement (as such may be amended from time to time).
Notwithstanding the absence of the aforementioned legend, certificates
evidencing shares of Common Stock outstanding on or prior to the Record Date or
which bear an earlier form of legend shall also evidence one Right for each
share of Common Stock evidenced thereby. Promptly following the Separation
Time, separate certificates evidencing the Rights ("Rights Certificates") will
be mailed to holders of record of Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day (as defined
in the Rights Agreement) following the Separation Time. The Rights will expire
on the earliest of (i) the Exchange Time (as defined below), (ii) the close of
business on November 15, 2005, (iii) the date on which the Rights are redeemed
as described below and (iv) upon certain mergers of the Company with another
corporation pursuant to an agreement entered into prior to a Flip-in Date (in
any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for
Common Stock.
In the event that prior to the Expiration Time a Flip-in Date occurs,
each Right (other than Rights Beneficially Owned by the Acquiring Person or any
affiliate or associate thereof, which Rights shall become void) shall
constitute the right to purchase from the Company, upon the exercise thereof in
accordance with the terms of the Rights Agreement, that number of shares of
Common Stock of the Company having an aggregate Market Price (as defined in the
Rights Agreement), on the date of the public announcement of an Acquiring
Person's becoming such (the "Stock Acquisition Date") that gave rise to the
Flip-in Date, equal to twice the Exercise Price for an amount in cash equal to
the then current Exercise Price. In addition, the Board of Directors of the
Company may, at its option, at any time after a Flip-in Date and prior to the
time an Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding shares of Common Stock, elect to
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exchange all (but not less than all) the then outstanding Rights (other than
Rights Beneficially Owned by the Acquiring Person or any affiliate or associate
thereof, which Rights become void) for shares of Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
of the Separation Time (the "Exchange Ratio"). Immediately upon such action by
the Board of Directors (the "Exchange Time"), the right to exercise the Rights
will terminate and each Right will thereafter represent only the right to
receive a number of shares of Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated under the preceding
paragraph to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of Series A
Preferred Stock, at a ratio of one one-hundredth of a share of Series A
Preferred Stock for each share of Common Stock so issuable.
In the event that prior to the Expiration Time the Company enters into,
consummates or permits to occur a transaction or series of transactions after
the time an Acquiring Person has become such in which, directly or indirectly,
(i) the Company shall consolidate or merge or participate in a binding share
exchange with any other Person if, at the time of the consolidation, merger or
share exchange or at the time of the consolidation, merger or share exchange or
at the time the Company enters into an agreement with respect to such
consolidation, merger or share exchange, the Acquiring Person Controls the
Board of Directors of the Company (as defined in the Rights Agreement) and
either (A) any term of or arrangement concerning the treatment of shares of
capital stock in such merger, consolidation or share exchange relating to the
Acquiring Person is not identical to the terms and arrangements relating to
other holders of Common Stock or (B) the Person with whom the transaction or
series of transactions occurs is the Acquiring Person or an Affiliate or
Associate of the Acquiring Person or (ii) the Company shall sell or otherwise
transfer (or one or more of its subsidiaries shall sell or otherwise transfer)
assets (A) aggregating more than 50% of the assets (measured by either book
value or fair market value) or (B) generating more than 50% of the operating
income or cash flow, of the Company and its subsidiaries (taken as a whole) to
any other Person (other than the Company or one or more of its wholly owned
subsidiaries) or to two or more such Persons which are affiliated or otherwise
acting in concert, if, at the time such sale or transfer of assets or at the
time the Company (or any such subsidiary) enters into an agreement with respect
to such sale or transfer, the Acquiring Person
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Controls the Board of Directors of the Company (a "Flip-over Transaction or
Event"), the Company shall take such action as shall be necessary to ensure,
and shall not enter into, consummate or permit to occur such Flip-over
Transaction or Event until it shall have entered into a supplemental agreement
with the Person engaging in such Flip-over Transaction or Event or the parent
corporation thereof (the "Flip-over Entity"), for the benefit of the holders of
the Rights, providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-over Entity, upon exercise thereof in accordance with
the terms of the Rights Agreement, that number of shares of common stock of the
Flip-over Entity having an aggregate Market Price on the date of consummation
or occurrence of such Flip-over Transaction or Event equal to twice the
Exercise Price for an amount in cash equal to the then current Exercise Price
and (ii) the Flip-over Entity shall thereafter be liable for, and shall assume,
by virtue of such Flip-over Transaction or Event and such supplemental
agreement, all the obligations and duties of the Company pursuant to the Rights
Agreement. For purposes of the foregoing description, the term "Acquiring
Person" shall include any Acquiring Person and its Affiliates and Associates
counted together as a single Person.
Notwithstanding the foregoing, no Separation Time, Stock Acquisition
Date, Flip-In Date or Flip-over Transaction or Event shall be deemed to have
occurred, and no holder of Rights shall be entitled to exercise the Rights,
solely by reason of the approval, execution, or delivery of the SparBank Merger
Agreement, or the consummation of any transactions contemplated by the SparBank
Merger Agreement.
The Board of Directors of the Company may, at its option, at any time
prior to the close of Business on the Flip-in Date, redeem all (but not less
than all) the then outstanding Rights at a price of $.01 per Right (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to redeem the Rights,
without any further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only the right
to receive the Redemption Price in cash for each Right so held.
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The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as stockholders of the Company, including, without
limitation, the right to vote or to receive dividends.
The Restated Rights Agreement (which includes as Exhibit A the forms of
Rights Certificate and Election to Exercise) is incorporated by reference as
an exhibit hereto and the June 1997 Amendment is filed herewith as an exhibit.
Both the Restated Rights Agreement and the June 1997 Amendment are
incorporated into this description of the Rights by reference and the foregoing
description of the Rights is qualified in its entirety by reference to the
Restated Rights Agreement and the June 1997 Amendment.
Item 2. Exhibits.
Exhibit No. Description
1 Amended and Restated Rights Agreement (incorporated by reference
to Amendment No. 1 to this Registration Statement, filed on
November 21, 1995).
2 Form of Rights Certificate and of Election to Exercise, included
in Exhibit A to the Restated Rights Agreement (incorporated by
reference to Amendment No. 1 to this Registration Statement,
filed on November 21, 1995).
3 Designation of Series A Preferred Stock, included in Exhibit B
to the Restated Rights Agreement (incorporated by reference to
Amendment No. 1 to this Registration Statement, filed on November
21, 1995).
4 First Amendment to Amended and Restated Rights Agreement.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized.
FIRST MIDWEST BANCORP, INC.
By /s/ Donald J. Swistowicz
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Name: Donald J. Swistowicz
Title: Executive Vice President &
Chief Financial Officer
Date: June 30, 1997
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EXHIBIT INDEX
Exhibit Sequential
No. Description Page Numbers
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(4) First Amendment to Amended and
Restated Rights Agreement
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Exhibit (4)
FIRST AMENDMENT
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment") is entered into as of June 18, 1997, between First Midwest Bancorp,
Inc., a Delaware corporation (the "Company"), and First Midwest Trust Company,
as rights agent (the "Rights Agent"). This Amendment modifies and amends the
Amended and Restated Rights Agreement, dated as of November 15, 1995, between
the Company and the Rights Agent (the "Rights Agreement").
W I T N E S S E T H:
WHEREAS, Section 5.4 of the Rights Agreement provides that prior to the
Separation Time, the Company may, at any time or from time to time, supplement
or amend the Rights Agreement in any respect without the approval of any holders
of Rights; and
WHEREAS, as of the date hereof, the Separation Time has not occurred;
and
WHEREAS, THE Company and SparBank, Incorporated, a Delaware corporation
("SparBank"), propose to enter into an Agreement and Plan of Merger (the
"SparBank Merger Agreement") pursuant to which SparBank will be merged with and
into a wholly owned subsidiary of the Company and stockholders of SparBank will
receive shares of Common Stock with one Right attached thereto in exchange for
their shares of SparBank Common Stock; and
WHEREAS, in connection with the anticipated approval, execution and
delivery of the SparBank Merger Agreement, the Board of Directors of the Company
has adopted, in accordance with Sections 5.4 and 5.14 of the Rights Agreement, a
resolution approving this Amendment and directing the appropriate officers of
the Company to take all appropriate steps to execute, deliver, and put into
effect this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF DEFINITION OF "ACQUIRING PERSON". The definition of
"Acquiring Person" as set forth in Section 1.1 of the Rights Agreement
is amended by striking in the first sentence of said definition the
word "or" that
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immediately precedes the parenthetical with the number "iii" inside and
replacing said word with a comma and by adding the following language
at the end of the first sentence of said definition:
" . . ., or (iv) who is a Cowlin Family Member who Beneficially owns
shares of Common Stock consisting solely of one or more of (A) shares of Common
Stock Beneficially Owned pursuant to the SparBank Merger Agreement, (B) shares
of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) Beneficially Owned by a Cowlin Family Member or
its Affiliates or Associates at the time of the execution of the SparBank Merger
Agreement, (C) shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) acquired by a Cowlin Family
Member or its Affiliates or Associates after the execution of the SparBank
Merger Agreement, which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock or (D) shares of Common Stock acquired by
means of a stock dividend or stock split. For purposes of this Agreement, the
term "Cowlin Family Member" shall mean (i) Geraldine C. Cowlin, (ii) any spouse
of Geraldine C. Cowlin, (iii) any lineal descendants (including descendants by
adoption and their descendants) of Geraldine C. Cowlin or any spouse of any such
lineal descendant, (iv) any estate of, or trust established by, one or more of
the persons described in clauses (i), (ii), and (iii), provided that one or more
of the persons described in clauses (i), (ii), and (iii) or charitable
organizations which qualify as exempt organizations under Section 501(c) of the
Internal Revenue Code of 1986, as amended ("Charitable Organizations"),
collectively, are the beneficiaries of at least 50% of the
actuarially-determined beneficial interests in such estate or trust, (v) any
Charitable Organization which is established by one or more of the persons
described in clauses (i), (ii), and (iii) (a "Family Charitable Organization"),
(vi) any corporation of which a majority of the voting power is held, directly
or indirectly, by or for the benefit of one or more of the persons described in
clauses (i), (ii) or (iii), the estates or trusts described by clause (iv), or
Family Charitable Organizations, or (vii) any partnership or other entity or
arrangement of which a majority of the voting interests are held, directly or
indirectly, by or for the benefit of one or more of the persons described in
clauses (i), (ii) or (iii), the estates or trusts described in clause (iv), or
Family Charitable Organizations."
2. ADDITION OF SECTION 1.1. Section 1.1 of the Rights Agreement is amended
by adding the following definitions:
"SparBank" shall mean SparBank, Incorporated, a Delaware corporation,
and its successors.
"SparBank Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of June 18, 1997, by and between SparBank and the
Company, as the same may be from time-to-time amended.
3. ADDITION OF SECTION 5.19. Section 5.19 is added to the Rights Agreement
to read as follows:
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"5.19 CERTAIN EVENTS. Notwithstanding any provision of this Agreement
to the contrary, on Separation Time, Stock Acquisition Date, Flip-In
Date or Flip-over Transaction or Event shall be deemed to have
occurred, and no holder of Rights shall be entitled to exercise the
Rights, solely by reason of the approval, execution, or delivery of the
SparBank Merger Agreement, or the consummation of any transactions
contemplated by the SparBank Merger Agreement. In the event a Cowlin
Family Member or any of its Affiliates or Associates becomes the
Beneficial Owner of any shares of Common Stock in a manner not
permitted by clause (iv) of the first sentence of the definition of
"Acquiring Person" as set forth in Section 1.1 hereof, the provisions
of this Section shall not be applicable."
4. EFFECTIVENESS. This Amendment shall be deemed to be in force and
effective immediately upon execution and delivery of the SparBank
Merger Agreement. Except as amended hereby, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of this day and year first above written.
FIRST MIDWEST BANCORP, INC.
By: /s/ Robert P. O'Meara
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Its President
FIRST MIDWEST TRUST COMPANY
By: /s/ Thomas W. Allen
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Its duly authorized officer
