<PAGE>
Registration No. 333-37809
As filed with the Securities and Exchange Commission on March __, 1998
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FIRST MIDWEST BANCORP, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3161078
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459, (630) 875-7450
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Donald J. Swistowicz
Executive Vice President
First Midwest Bancorp, Inc.
300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459
(630) 875-7450
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Timothy M. Sullivan Gary L. Mowder
Hinshaw & Culbertson Schiff Hardin & Waite
222 North LaSalle Street, Suite 300 7200 Sears Tower
Chicago, Illinois 60601-1081 Chicago, Illinois 60606
(312) 704-3000 (312) 258-5514
The registrant hereby amends this Post-Effective Amendment No. 1 to 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 Post-Effective Amendment No. 1 to this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Post-Effective Amendment
No. 1 to this Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ 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 may not be sold nor +
+ may offers 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 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 March ______, 1998
PROSPECTUS March ___,1998
FIRST MIDWEST BANCORP, INC.
1,520,611 Shares
Common Stock
($.01 par value)
This Prospectus pertains to an offering from time to time of up to
1,520,611 shares of common stock, par value $.01 ("Common Stock"), of First
Midwest Bancorp, Inc. (the "Company"), held by stockholders (the "Selling
Stockholders") who received the shares in exchange for their shares of
common stock of SparBank, Incorporated ("SparBank"), in connection with the
Company's acquisition of SparBank on October 1, 1997. See "SELLING
STOCKHOLDERS" (located on pages 9-11 of this Prospectus). The Company will
not receive any proceeds from the sale of the shares of Common Stock covered
by this Prospectus. The Company has agreed to pay certain expenses in
connection with this offering (excluding underwriting discounts, selling
commissions, brokers' fees or similar discounts, commissions or fees to be
paid by the Selling Stockholders).
The Common Stock is quoted on the Nasdaq Stock Market's National Market
(the "Nasdaq Stock Market") under the symbol "FMBI". On March ___, 1998,
the last sale price of the Common Stock as reported on the Nasdaq Stock
Market was $_______ per share.
The Common Stock may be offered for sale from time to time by the
Selling Stockholders to or through underwriters or directly to other
purchasers or through agents or brokers in one or more transactions on the
Nasdaq Stock Market, in one or more private transactions, or in a
combination of such methods of sale, at prices and on terms then prevailing,
at prices related to such prices, or at negotiated prices. The price at
which any of the shares of Common Stock may be sold, and the commissions, if
any, paid in connection with any such sale, are unknown and may vary from
transaction to transaction. As of the date hereof, the distribution and
sale of the shares of Common Stock offered hereby are also subject to the
provisions of an Investment Agreement, dated as of June 18, 1997, between
the Company and the Selling Stockholders. The Investment Agreement
requires, among other things, that any transfer of the shares "to the
public" be made in an "ordinary trading transaction." An "ordinary trading
transaction" is defined in the Investment Agreement as a sale of the shares
on the Nasdaq Stock Market using the services of a broker-dealer registered
in the state where the transfer is to occur, without the use of special
selling efforts or methods. See "PLAN OF DISTRIBUTION" (located on pages 11-
12 of this Prospectus).
See "INVESTMENT CONSIDERATIONS" (located on pages 6-9 of the
Prospectus) for a discussion of certain risks that should be considered by
prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
<PAGE>
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.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
The Company.................................................. 3
Recent Developments.......................................... 3
Cautionary Statement Concerning Forward-Looking Information.. 6
Investment Considerations.................................... 6
Use of Proceeds.............................................. 9
Selling Stockholders......................................... 9
Plan of Distribution......................................... 11
Pro Forma Financial Information.............................. 12
Legal Matters................................................ 16
Experts...................................................... 16
Available Information........................................ 16
Incorporation of Certain Documents by Reference.............. 17
</TABLE>
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or
solicitation of an offer to buy to any person in any jurisdiction where such
an offer or solicitation would be unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that the information contained herein is current as of
any time subsequent to the date hereof.
2
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THE COMPANY
The Company is a Delaware corporation that was incorporated in 1982 for
the purpose of becoming a multi-bank holding company. The subsidiaries
("Affiliates") of the Company include a commercial bank that is a national
banking association and three nonbank Affiliates that offer trust and
investment management, mortgage banking and credit life insurance related
services in the same markets served by the bank Affiliate. See also "RECENT
DEVELOPMENTS" below (located on pages 3-5 of this Prospectus). The Company,
headquartered in the Chicago suburb of Itasca, Illinois, is Illinois' third
largest publicly traded bank holding company with assets of approximately
$3.6 billion at December 31, 1997.
The Bank's national bank affiliate, First Midwest Bank, National
Association (the "Bank"), is engaged in the general commercial banking
business which embraces all the usual functions of commercial and retail
banking, including: accepting deposits; commercial and industrial, consumer
and real estate lending; collections; safe deposit box operations; and other
banking services tailored for individual, commercial and industrial and
governmental customers. The Bank operates 55 banking offices in northern
Illinois with approximately 78% of its banking assets located in the
suburban metropolitan Chicago area. Another approximate 16% of the Bank's
assets are located in the "Quad-Cities" area of Western Illinois which
includes the Illinois cities of Moline and Rock Island and the Iowa cities
of Davenport and Bettendorf. The remaining 6% of the Bank's assets are
located in the southeastern region of the state in Vermilion and Champaign
counties. In each of the primary markets in which the Bank operates, it
ranks among the top five banking institutions in market share of deposits.
First Midwest Trust Company, N.A. (the "Trust Company"), provides trust
and investment management services to its clients, acting as executor,
administrator, trustee, agent, and in various other fiduciary capacities.
As of December 31, 1997, the Trust Company had approximately $1.6 billion in
trust assets under management, comprised of accounts ranging from small
personal investment portfolios to large corporate employee benefit plans.
First Midwest Mortgage Corporation (the "Mortgage Corporation")
performs centralized residential real estate mortgage loan origination,
sales and servicing operations previously conducted by the Bank.
First Midwest Insurance Company operates as a reinsurer of credit life,
accident and health insurance sold through the Bank, primarily in
conjunction with its consumer lending operations.
The Company's principal executive office is located at 300 Park
Boulevard, Suite 405, Itasca, Illinois, 60143-3459, and its telephone number
is (630) 875-7450.
RECENT DEVELOPMENTS
Acquisition of SparBank. The Company consummated the acquisition of
SparBank, the holding company of McHenry State Bank ("MSB"), which was
headquartered in McHenry, Illinois, on October 1, 1997. MSB operated four
banking offices in McHenry County, Illinois, and had total
3
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assets of approximately $436 million as of December 31, 1997. The Company
merged MSB into the Bank on February 23, 1998.
The acquisition was accounted for as a pooling of interests. The
Selling Stockholders received 21.7234 shares of Common Stock for each share
of SparBank common stock they owned in a tax-free exchange. The Company
issued 3,230,764 shares of Common Stock to the Selling Stockholders in
exchange for all of the issued and outstanding common stock of SparBank.
Incident to the SparBank acquisition, the Company recorded in the
fourth quarter of 1997 an acquisition charge of $5.446 million representing
primarily investment banker fees, severance and related benefit costs, legal
fees and professional services, contract termination fees and certain other
nonrecurring merger-related costs. Additionally, also incident to the
acquisition, the Company recorded a one-time provision of $1.296 million to
conform MSB's loan loss reserves and credit policies to First Midwest's.
Pending Acquisition. On January 14, 1998, the Company, First Midwest
Acquisition Corporation, a wholly owned subsidiary of the Company
("Acquisition Corporation"), and Heritage Financial Services, Inc.
("Heritage"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") whereby Heritage will be merged with and into Acquisition
Corporation (the "Merger"). Heritage is a $1.3 billion holding company
headquartered in Tinley Park, Illinois with 17 banking offices located in
the south and southwest suburban Chicago banking market.
Pursuant to the Merger Agreement, the transaction will be structured as
a tax-free exchange and accounted for as a pooling-of-interests. Each
outstanding share of Heritage's Common stock, no par value, will be
converted to 0.7695 of a share of Company Common Stock, resulting in the
issuance of approximately 9.7 million shares of Company Common Stock. Based
on First Midwest's January 14, 1998 closing price of $42.38 per share, the
transaction is valued at approximately $411 million.
The Merger is conditioned upon, among other things, approval by the
shareholders of both First Midwest and Heritage, and receipt of customary
regulatory approvals. The Merger Agreement has been approved by the Boards
of Directors of both companies. In conjunction with the approval of the
Merger Agreement, Heritage rescinded the balance of its stock repurchase
program authorized in June, 1996. It is anticipated the acquisition will be
consummated late in the second quarter of 1998. First Midwest intends to
merge Heritage Bank, Heritage's principal subsidiary, into the Bank prior to
year-end 1998.
Incident to the entry into the Merger Agreement, the Company and
Heritage executed a Stock Option Agreement (the "Option Agreement") pursuant
to which Heritage granted the Company an option to acquire up to 2,400,000
shares of Heritage Common Stock (representing 19.9% of its outstanding
shares as of January 14, 1998) at a price of $21.25 per share subject to
certain terms and conditions set forth in the Option Agreement.
4
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On January 23, 1998, the Company filed a Current Report on Form 8-K
with the Commission (the "Company Form 8-K"), which contains, among other
things, certain financial and other information (the "Company Form 8-K
Materials") about the Merger. The Company Form 8-K Materials contain certain
forward-looking statements regarding the Company, Heritage and the combined
organization following the Merger, including statements relating to
estimated cost savings and enhanced revenues that may be realized from the
Merger, and certain acquisition costs and charges expected to be incurred in
connection with the Merger. Such forward-looking statements involve
significant risks and uncertainties. Actual results may differ materially
from the results discussed in the Company Form 8-K Materials and herein.
Factors that might cause such a difference include, but are not limited to,
those discussed in the Company Form 8-K and the Company's Annual Report on
Form 10-K for the year ended December 31, 1997. See "AVAILABLE INFORMATION,"
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE" and "CAUTIONARY STATEMENT
CONCERNING FORWARD-LOOKING INFORMATION" (located on pages 16, 17 and 6,
respectively, of this Prospectus).
As indicated in the Company Form 8-K:
. The Company expects to realize before-tax expense savings
resulting from the Merger of approximately $3.8 million and
$9.6 million in 1998 and 1999, respectively, or approximately
$2.3 million and $5.8 million after-tax, respectively. These
estimates assume that approximately 30% of Heritage's 1997
annualized expenses are eliminated by the end of 1999.
. The Company expects to record pre-tax acquisition costs and
related charges currently estimated at $15.4 million upon the
consummation of the Merger, as summarized below:
<TABLE>
<CAPTION>
<S> <C>
Severance and Related Obligations.... $ 8.0
Investment Banker Fees and Expenses.. 4.7
Professional and Filing Fees......... 1.2
Contract Termination Fees............ 0.8
Other................................ 0.7
-----
Total................................ $15.4
=====
</TABLE>
The estimates include assumptions about the timing of the consummation of
the Merger and the number of employees whose employment will terminate as a
result of the Merger. Changes in such assumptions could result in a change
in the estimated total charge.
5
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CAUTIONARY STATEMENT CONCERNING
FORWARD-LOOKING INFORMATION
This Prospectus (including information included or incorporated by
reference herein) contains certain forward-looking statements with respect
to the financial condition, results of operations, plans, objectives, future
performance and business of each of the Company and Heritage, including (i)
statements relating to the cost savings estimated to result from the Merger,
(ii) statements relating to revenues estimated to result from the Merger,
(iii) statements relating to the restructuring charges estimated to be
incurred in connection with the Merger and (iv) statements preceded by,
followed by or that include the words "believes," "expects," "anticipates,"
"estimates" or similar expressions. See "RECENT DEVELOPMENTS" and "PRO
FORMA FINANCIAL INFORMATION" (located on pages 3-5 and 12-15, respectively,
of this Prospectus). These forward-looking statements involve certain risks
and uncertainties. The Company does not undertake any obligation to reflect
circumstances or events that arise after the date hereof. Factors that may
cause actual results to differ materially from those contemplated by such
forward-looking statements include, among others, the following
possibilities: (a) expected cost savings from the Merger may not be fully
realized or realized within the expected time frame; (b) revenues following
the Merger may be lower than expected, or deposit attrition, operating costs
or customer loss and business disruption following the Merger may be greater
than expected; (c) competitive pressures among depository and other
financial institutions may increase significantly; (d) costs or difficulties
related to the integration of the business of the Company and Heritage may
be greater than expected; (e) changes in the interest rate environment may
reduce margins; (f) general economic or business conditions, either
nationally or in the states in which the Company is doing business, may be
less favorable than expected, resulting in, among other things, a
deterioration in credit quality or a reduced demand for credit; (g)
legislative or regulatory changes may adversely affect the business in which
the Company is engaged; and (h) changes may occur in the securities markets.
The forward-looking earnings estimates included in this Prospectus have not
been examined or compiled by the independent public accountants of the
Company nor have such accountants applied any procedures thereto.
Accordingly, such accountants do not express an opinion or any other form of
assurance on them. Further information on other factors which could affect
the financial results of the Company after the Merger is included in the
Commission filings incorporated by reference herein.
INVESTMENT CONSIDERATIONS
Prospective purchasers should consider carefully the following factors
associated with the ownership of the Common Stock together with the other
information contained in this Prospectus.
Competition. Illinois, and more specifically the metropolitan Chicago
area, is a highly competitive market for banking and related financial
services. Since the Chicago area is the Company's focus market, the Bank
and the Mortgage Corporation are exposed to varying types and levels of
competition from associated industries. In general, however, the Bank and
the Mortgage Corporation compete with other banking institutions, savings
and loan associations, personal loan and finance companies, and credit
unions within their market areas. The Trust Company competes
6
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with retail and discount stock brokers, investment advisors, mutual funds,
insurance companies, and to a lesser extent, financial institutions. Factors
influencing the type of competition experienced by the Trust Company
generally involve the variety of products and services that can be offered
to clients. Satisfying the needs of the client, in terms of providing
quality services and tailored products at competitive prices, primarily
dictates the competitive advantage within the industries.
Loan Portfolio Risks. Inherent in the Company's banking operations are
risks associated with the loan portfolio, including credit, interest rate,
prepayment and liquidity risk. The Company manages such risks through
adherence to policies and procedures designed to control and/or limit risk,
such as underwriting and asset/liability policies and procedures as well as
a detailed loan rating system used in conjunction with credit reviews
performed by its loan review staff. Further, loan loss reserve policies
provide Management with recommended levels of loan reserves, mitigating the
financial statement impact of unforeseen future losses on loans. Management
does not believe that the overall loan portfolio risk inherent in the
Company's loan portfolio is in excess of risks experienced by others in the
same or similar industries.
Impact of Interest Rate Changes. Interest rate risk is an inherent
part of the banking business as financial intermediaries garner deposits and
borrow other funds to finance earning assets. Risk results when either
contractual relationships or prevailing market conditions cause rates paid
on deposits and other borrowings to reprice on a basis which does not
coincide with the repricing events affecting yields on earning assets. If
more assets than liabilities reprice in a given time period, the balance
sheet is considered asset-sensitive. In a rising interest rate environment,
this position would generally result in favorable growth in net interest
income, and in a declining interest rate environment, net interest income
would be adversely affected. Conversely, if more liabilities than assets
reprice, the balance sheet is considered liability-sensitive. In a rising
rate environment, this position would generally result in an adverse effect
on net interest income, and in a declining interest rate environment the
effect would be favorable.
Economic Conditions and Monetary Policies. Conditions beyond
Management's control may have a significant impact on changes in net
interest income from one period to another. Examples of such conditions
could include: (a) the strength of credit demands by customers; (b) fiscal
and debt management policies of the federal government, including changes in
tax laws; (c) the Federal Reserve Board's monetary policy, including the
percentage of deposits that must be held in the form of non-performing cash
reserves; (d) the introduction and growth of new investment instruments and
transaction accounts by non-bank financial competitors; and (e) changes in
rules and regulations governing payment of interest on deposit accounts.
Government Regulation. The Company and its Affiliates are subject to
regulation and supervision by various governmental regulatory authorities
including, but not limited to, the Federal Reserve Board, the Office of the
Comptroller of the Currency, the Federal Deposit Insurance Corporation (the
"FDIC"), the Illinois Commissioner of Banks and Real Estate, the Arizona
Department of Insurance, the Internal Revenue Service and state taxing
authorities. Financial institutions and their holding companies are
extensively regulated under federal and state law.
7
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Federal and state laws and regulations generally applicable to
financial institutions, such as the Company and the Affiliates, regulate,
among other things, the scope of business, investments, reserves against
deposits, capital levels relative to operations, the nature and amount of
collateral for loans, the establishment of branches, mergers, consolidations
and dividends. This supervision and regulation is intended primarily for the
protection of the FDIC's bank and savings association insurance funds and
depositors of a financial institution. Consequently, laws and regulations
may impose limitations on the Company that may not be in the best interests
of the Company and its stockholders. The effect of such statutes,
regulations and policies can be significant, and cannot be predicted with a
high degree of certainty.
FDIC Insurance Premiums. The deposits of the Company are insured up to
$100,000 per insured member (as defined by law and regulation) by the FDIC
with such insurance backed by the full faith and credit of the United States
government. The Company's deposits are predominantly insured by the Bank
Insurance Fund ("BIF") while certain deposits of the Company are insured by
the Savings Association Insurance Fund ("SAIF"), both of which are
administered by the FDIC.
As insurer, the FDIC assesses deposit insurance premiums and is
authorized to conduct examinations of, and require reporting by, FDIC-
insured institutions. Deposit insurance premiums are assessed through a
risk-based system under which all insured depository institutions are placed
into one of nine categories and assessed insurance premiums based upon their
level of capital and supervisory evaluation. Institutions assigned higher
risk classifications pay deposit insurance premiums at a higher rate than
the institutions assigned lower risk classifications.
The 1998 annual deposit insurance premium established by the FDIC for
the Company's BIF assessable deposits is set at 0%, reflecting the lowest
premium assessment as the Company is classified as well-capitalized.
Further, as a result of the special assessment on SAIF deposits required by
the Deposit Insurance Funds Act of 1996, the SAIF was recapitalized on
October 1, 1996. Accordingly, no premium assessments have been imposed on
the Company's SAIF deposits for 1998. It is unknown whether such assessments
will change in future periods.
For 1998, the Company will pay premium assessments on both its BIF and
SAIF deposits in order to service the interest on the Financing Corporation
("FICO") bond obligations which were used to finance the cost of "thrift
bailouts" in the 1980's. The FICO assessment rates on BIF assessable
deposits were set at $.01296 and $.0126 per $100 of insured deposits for the
1998 first and second semi-annual periods, respectively, and $.0648 and
$.0630 per $100 of insured for SAIF assessable deposits, respectively, for
such periods. These rates may be adjusted quarterly to reflect changes in
the assessment basis for the BIF and SAIF. By law, the FICO rate on BIF
assessable deposits must be 1/5 of the rate on SAIF assessable deposits
until the insurance funds are merged or until January 1, 2000, whichever
occurs first.
Anti-Takeover Provisions. The Company has taken a number of actions
which could have the effect of discouraging a takeover attempt that might be
beneficial to stockholders who wish to receive a premium for their shares
from a potential bidder. The Company has adopted a stockholder rights plan
which would cause substantial dilution to a person who attempts to acquire
the Company
8
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on terms not approved by the Company's Board of Directors. The stockholder
rights plan may therefore have the effect of delaying or preventing any
change in control and deterring any prospective acquisition of the Company.
The Company's Restated Certificate of Incorporation and its Amended and
Restated By-laws also contain provisions which may have the effect of
delaying or preventing a change in control. The provisions include: (i) the
classification of the Board of Directors; (ii) the restriction that
directors can only be removed for cause and only by a majority of the
directors or by the vote of persons holding 67% of the voting securities of
the Company; (iii) the authority of the Board of Directors to issue series
of preferred stock with such voting rights and other provisions as the Board
of Directors may determine; (iv) a super-majority voting requirement to
approve certain business combinations; and (v) a super-majority voting
requirement to amend provisions of the Restated Certificate of Incorporation
or the Amended and Restated By-laws relating to the classification of the
Board, removal of directors and the super-majority voting requirement for
certain business combinations. In addition, Section 203 of the Delaware
General Corporation Law may have the effect of discouraging takeover
attempts directed at the Company. Furthermore, employment agreements with
certain senior executives of the Company provide for severance pay in the
event of a "Change of Control" of the Company as such term is defined in
such agreements.
Acquisition Charge. See "RECENT DEVELOPMENTS -- Pending Acquisition"
(located on pages 4-5 of this Prospectus) for a description of the pre-tax
acquisition costs and related charges to be recorded in the second quarter
of 1998 incident to the acquisition of Heritage.
USE OF PROCEEDS
All of the shares of Common Stock covered hereby are being offered by
the Selling Stockholders. The Company will not receive any proceeds from the
sales of Common Stock by the Selling Stockholders.
SELLING STOCKHOLDERS
On June 18, 1997, the Company, FMB Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of the Company ("FMB"), and SparBank
and certain of the Selling Stockholders entered into an Agreement and Plan
of Merger (the "Merger Agreement") pursuant to which SparBank was merged
with and into FMB on October 1, 1997 (the "Merger"). Upon the consummation
of the Merger, each outstanding share of common stock of SparBank was
converted into 21.7234 shares of Common Stock of the Company. A total of
3,230,764 shares of Common Stock were issued to the Selling Stockholders in
exchange for all of the issued and outstanding shares of SparBank common
stock.
The Selling Stockholders and the Company are parties to the Investment
Agreement pursuant to which the Company agreed to prepare and file with the
Securities and Exchange Commission (the "Commission") a Registration
Statement under the Securities Act of 1933, as amended (the "Securities
Act"), registering the offer and sale by the Selling Stockholders of an
agreed-upon number of the shares of Common Stock issued in the Merger. The
Company has agreed to prepare
9
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and file with the Commission such amendments and supplements to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective until the earlier of October 1, 1998, or
the date on which all of the shares of Common Stock offered hereby have been
sold. Under the terms of the Investment Agreement, the Company has agreed to
pay certain fees and expenses incurred in connection with the registration;
provided, however, that the Company will not pay any underwriting discounts,
selling commissions, brokers' fees or similar discounts, commissions or fees
attributable to the sale or distribution of the shares of Common Stock,
which expenses will be paid by the Selling Stockholders.
Under the Investment Agreement, the Selling Stockholders agreed that
they would not directly or indirectly offer, sell, pledge or transfer or
otherwise dispose of (or solicit any offers to buy, purchase, or otherwise
acquire or pledge) any of the shares offered hereby, except in compliance
with the Investment Agreement and the Securities Act and the rules and
regulations promulgated thereunder.
The Selling Stockholders may not transfer their rights under the
Investment Agreement without the Company's consent. Such consent is not
required, however, in the case of a transfer by bequest, devise,
inheritancy, laws of intestacy, or gift.
The table below sets forth certain information with respect to the
Selling Stockholders and their beneficial ownership of Common Stock as of
March ___, 1998, and includes information with respect to positions, offices
or other material relationships of the Selling Stockholders with the
Company, or any of its predecessors or affiliates, during the past three
years. Each of the Selling Stockholders will determine, in such Selling
Stockholder's sole discretion, the number of shares of Common Stock, if any,
to be sold by such Selling Stockholder during the effectiveness of the
Registration Statement, but in no event will such number exceed the number
of shares of Common Stock specified below. The Company may amend or
supplement this Prospectus from time to time to disclose the names,
relationships to the Company, and holdings of Common Stock of additional
Selling Stockholders.
<TABLE>
<CAPTION>
Number of Shares Percentage of
Shares of of Common Stock Common Stock
Common Stock Number of Shares Owned Assuming Owned Assuming
Owned Prior to of Common Stock the Sale of All of the Sale of All of
Name/1/ the Offering Offered the Shares Offered the Shares Offered
------- -------------- ---------------- ------------------ -------------------
<S> <C> <C> <C> <C>
Geraldine C. Cowlin/2/..... 2,310,153 600,000 1,710,153 8.53%
William J. Cowlin, Sr./3/.. 8,689 8,689 0 0.00
William J. Cowlin, Jr./4/.. 114,286 114,286 0 0.00
Sarah Cowlin Towne/4/...... 114,286 114,286 0 0.00
Bridget Cowlin............. 114,286 114,286 0 0.00
Martha Cowlin.............. 114,286 114,286 0 0.00
David Cowlin............... 114,330 114,330 0 0.00
John Zieman................ 170,224 170,224 0 0.00
Jane Zieman Salmon......... 170,224 170,224 0 0.00
--------- ---------
Total................. 3,230,764 1,520,611
========= ---------
</TABLE>
------------------
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1 William J. Cowlin, Sr., is the spouse of Geraldine C. Cowlin. William J.
Cowlin, Jr., Sarah Cowlin Towne, Bridget Cowlin, Martha Cowlin and David
Cowlin are the children of William J. Cowlin, Sr., and Geraldine Cowlin.
John Zieman and Jane Zieman Salmon are the nephew and niece of William J.
Cowlin, Sr., and Geraldine C. Cowlin.
2 Geraldine C. Cowlin served as President and a Director of SparBank and as
a Director of MSB prior to the Merger.
3 William J. Cowlin, Sr., served as Secretary and a Director of SparBank
and as a Director of MSB prior to the Merger. As provided in the Merger
Agreement, William J. Cowlin, Sr., was appointed to serve as a Director
of the Company effective as of October 1, 1997, for a three-year term.
Under the terms of the Merger Agreement, William J. Cowlin, Sr. (or such
other nominee of Geraldine C. Cowlin) shall be nominated by the Board of
Directors of the Company to serve as director of the Company for a second
three-year term following the expiration of his first term.
4 William J. Cowlin, Jr., and Sarah Cowlin Towne served as directors of MSB
prior to the Merger.
PLAN OF DISTRIBUTION
Subject to applicable provisions of the Investment Agreement, the
Common Stock covered by this Prospectus may be offered for sale from time to
time by the Selling Stockholders to or through underwriters or directly to
other purchasers or through agents in one or more transactions on the Nasdaq
National Market, in one or more private transactions, or in a combination of
such methods of sale, at prices and on terms then prevailing, at prices
related to such prices, or at negotiated prices. Such methods of sale may
include, without limitation, (a) a block trade in which the broker-dealer so
engaged will attempt to sell the Common Stock as agent but may position and
resell a portion of the block as principal to facilitate the transaction,
(b) purchases by a broker-dealer as a principal and resale by such broker-
dealer for its own account pursuant to this Prospectus, and (c) ordinary
brokerage transactions and transactions in which the broker solicits
purchasers. This Prospectus may be amended and supplemented from time to
time to describe a specific plan of distribution, to the extent that such
amendment or supplement is required by applicable law.
In connection with sales of the Common Stock or otherwise, the Selling
Stockholders may enter into hedging transactions with broker-dealers or
other financial institutions. In connection with such transactions, broker-
dealers or other financial institutions may engage in short sales of Common
Stock in the course of hedging the positions they assume with the Selling
Stockholders. To the extent permitted by applicable law, the Selling
Stockholders may also sell Common Stock short and redeliver the shares to
close out such short positions. The Selling Stockholders may also enter into
options or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker- dealer or financial
institution of the Common Stock offered hereby, which Common Stock such
broker-dealer or other financial institution may resell pursuant to this
Prospectus (as supplemented or amended to reflect such transaction). The
Selling Stockholders may also pledge the shares registered hereunder to a
broker-dealer or other financial institution and, upon a default, such
broker-dealer or other financial institution may, subject to the Investment
Agreement, effect sales of the pledged Common Stock pursuant to this
Prospectus.
Brokers, dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the Selling Stockholders in
amounts to be negotiated in connection with sales
11
<PAGE>
pursuant hereto. Any such remuneration will be disclosed in a prospectus or
prospectus supplement filed under the Securities Act, to the extent such
disclosure is required under applicable law. The Selling Stockholders and
such brokers and dealers and any other participating brokers or dealers may
be deemed to be "underwriters" within the meaning of the Securities Act, in
connection with such sales, and any such commission, discount or concession
may be deemed to be underwriting discounts or commissions under the
Securities Act.
In order to comply with the securities laws of certain states, if
applicable, the Common Stock will be sold hereunder in such jurisdictions
only through registered or licensed brokers or dealers.
Notwithstanding the foregoing, as of the date of this Prospectus, the
distribution and sale of the shares of Common Stock offered hereby are
subject to the provisions of the Investment Agreement. The Investment
Agreement requires, among other things, that any transfer of such shares of
Common Stock "to the public" be made in an "ordinary trading transaction."
An "ordinary trading transaction" is defined in the Investment Agreement as
a sale of the shares on the Nasdaq National Market using the services of a
broker-dealer registered in the state where the transfer is to occur,
without the use of special selling efforts or methods.
Under the Investment Agreement, the Company has agreed to indemnify the
Selling Stockholders and certain related persons against certain liabilities
in connection with the offering of the Common Stock pursuant to this
Prospectus, including liabilities arising under the Securities Act. The
Selling Stockholders have also agreed to indemnify the Company and certain
related persons against certain liabilities in connection with the offering
of the Common Stock pursuant to this Prospectus, including liabilities
arising under the Securities Act.
PRO FORMA FINANCIAL INFORMATION
(dollars in thousands, except per share data)
The following unaudited Pro Forma Condensed Statement of Condition as
of December 31, 1997, combines, under the pooling-of-interests method of
accounting, the historical consolidated statements of condition of the
Company and Heritage as if the Merger had been effective on December 31,
1997. The following unaudited Pro Forma Condensed Statements of Income for
the years ended December 31, 1997, December 31, 1996 and December 31, 1995
present the combined results of operations of the Company and Heritage,
under the pooling-of-interests method of accounting, as if the Merger had
been effective at January 1, 1995.
The pro forma combined information is not necessarily indicative of the
actual results that would have occurred had the Merger been consummated
prior to the periods indicated, or of the future operations of the combined
entity. This information should be read in conjunction with, and is
qualified in its entirety by, the historical financial statements of the
Company, including the notes thereto. See "AVAILABLE INFORMATION,"
"INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE," "CAUTIONARY STATEMENT
CONCERNING FORWARD-LOOKING INFORMATION," and "RECENT DEVELOPMENTS" (located
on pages 16, 17, 6 and 3-5, respectively, of this Prospectus).
12
<PAGE>
Under the pooling-of-interests method of accounting, the historical
basis of the assets and liabilities of the Company and Heritage will be
combined as of the consummation of the Merger and carried forward at their
previously recorded amounts. The stockholders' equity accounts of the
Company and Heritage will be combined on the Company's consolidated
statement of condition, and no goodwill or other intangible assets will be
created. Financial statements of the Company issued after the Merger will
be restated retroactively to reflect the consolidated operations of the
Company and Heritage as if the Merger had taken place prior to the periods
covered by such financial statements.
The Company and Heritage expect that the combined company will achieve
substantial benefits from the Merger in the form of operating cost savings.
However, the unaudited pro forma financial information does not reflect any
direct costs or potential savings which are expected to result from the
consolidation of operations of the Company and Heritage, and, therefore,
does not purport to be indicative of the results of future operations.
The pro forma financial statements do not take into account the effect
of the special charge for acquisition costs and related expenses and the
effect of such charge on the financial condition, results of operations and
reported per share amounts of the combined company.
<TABLE>
<CAPTION>
Pro Forma Condensed Statement of Condition (Unaudited)
December 31, 1997
------------------------------------------------------
Historical
--------------------------------
Pro Forma
Assets First Midwest Heritage Consolidated
------------- ---------- ------------
<S> <C> <C> <C>
Cash and due from banks.................................. $ 117,974 $ 48,214 $ 166,188
Funds sold and other short-term investments.............. 31,055 2,864 33,919
Mortgages held for sale.................................. 26,857 -- 26,857
Securities available for sale............................ 974,467 407,087 1,381,554
Securities held to maturity.............................. 20,323 113,101 133,424
Trading account securities............................... --- 450 450
Loans.................................................... 2,333,252 711,541 3,044,793
Reserve for loan losses.................................. (37,344) (9,621) (46,965)
---------- ---------- ----------
Net Loans............................................ $2,295,908 $ 701,920 $2,997,828
---------- ---------- ----------
Premises, furniture and equipment........................ 59,219 19,585 78,804
Accrued interest receivable and other assets............. 88,370 26,100 114,470
---------- ---------- ----------
Total Assets......................................... $3,614,173 $1,319,321 $4,933,494
========== ========== ==========
Liabilities and Stockholders' Equity
Deposits................................................. $2,795,975 $1,139,631 $3,935,606
Short-term borrowings.................................... 438,032 45,569 483,601
Accrued interest payable and other liabilities........... 42,654 11,915 54,569
---------- ---------- ----------
Total liabilities.................................... 3,276,661 1,197,115 4,473,776
---------- ---------- ----------
Stockholders' equity..................................... 337,512 122,206 459,718
---------- ---------- ----------
Total Liabilities and Stockholders' Equity........... $3,614,173 $1,319,321 $4,933,494
========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
Pro Forma Condensed Statement of Income (Unaudited)
December 31, 1997
------------------------------------------------------
Historical
--------------------------------
Pro-Forma
First Midwest Heritage Consolidated
Interest Income ------------- ---------- ------------
<S> <C> <C> <C>
Interest and fees on loans............................... $ 209,003 $ 57,772 266,775
Interest on securities................................... 59,005 32,960 91,965
</TABLE>
13
<PAGE>
<TABLE>
<S> <C> <C> <C>
Interest on funds sold and other short-term
investments.......................................... 2,498 424 2,922
---------- ---------- ----------
Total interest income................................ 270,506 91,156 361,662
---------- ---------- ----------
Interest Expense
Interest on deposits..................................... 99,973 40,692 140,665
Interest on short-term borrowings........................ 25,809 2,044 27,853
---------- ---------- ----------
Total interest expense............................... 125,782 42,736 168,518
---------- ---------- ----------
Net interest income.................................. 144,724 48,420 193,144
Provision for Loan Losses................................ 8,765 600 9,365
---------- ---------- ----------
Net interest income after provision
for loan losses..................................... 135,959 47,820 183,779
---------- ---------- ----------
Noninterest Income....................................... 37,222 9,607 46,829
Noninterest Expense...................................... 113,810 31,765 145,575
---------- ---------- ----------
Income before income tax expense..................... 59,371 25,662 85,033
Income Tax Expense....................................... 20,556 7,869 28,425
---------- ---------- ----------
Net Income........................................... $ 38,815 $ 17,793 $ 56,608
========== ========== ==========
Net Income Per Share/(1)/............................ $ 1.94 $ 1.93
========== ==========
Net Income Per Share, assuming dilution/(2)/......... $ 1.92 $ 1.90
========== ==========
Average Shares Outstanding/(1)/...................... 19,986 29,620
========== ==========
Average Shares Outstanding, assuming
dilution/(2)/....................................... 20,238 29,828
========== ==========
</TABLE>
<TABLE>
<CAPTION>
Pro Forma Condensed Statement of Income (Unaudited)
December 31, 1996
------------------------------------------------------
Historical
--------------------------------
Pro Forma
First Midwest Heritage Consolidated
Interest Income ------------- ---------- ------------
<S> <C> <C> <C>
Interest and fees on loans............................... $ 202,953 $ 52,907 255,860
Interest on securities................................... 62,397 30,223 92,620
Interest on funds sold and other short-term
investments.......................................... 3,443 694 4,137
---------- ---------- ----------
Total interest income................................ 268,793 83,824 352,617
---------- ---------- ----------
Interest Expense
Interest on deposits..................................... 100,142 36,327 136,469
Interest on short-term borrowings........................ 30,226 2,279 32,505
---------- ---------- ----------
Total interest expense............................... 130,368 38,606 168,974
---------- ---------- ----------
Net interest income.................................. 138,425 45,218 183,643
Provision for Loan Losses................................ 7,790 400 8,190
---------- ---------- ----------
Net interest income after provision
for loan losses..................................... 130,635 44,818 175,453
---------- ---------- ----------
Noninterest Income....................................... 34,335 7,724 42,059
Noninterest Expense...................................... 104,767 30,801 135,568
---------- ---------- ----------
Income before income tax expense..................... 60,203 21,741 81,944
Income Tax Expense....................................... 20,331 6,903 27,234
---------- ---------- ----------
Net Income........................................... $ 39,872 $ 14,838 $ 54,710
========== ========== ==========
Net Income Per Share................................. $ 1.96 $ 1.86
========== ==========
Net Income Per Share, assuming dilution/(2)/......... $ 1.95 $ 1.82
========== ==========
Average Shares Outstanding/(1)/...................... 20,314 29,470
========== ==========
Average Shares Outstanding, assuming
dilution/(2)/...................................... 20,467 30,076
========== ==========
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Pro Forma Condensed Statement of Income (Unaudited)
December 31, 1995
-----------------------------------------------------
Historical
--------------------------------
Pro Forma
First Midwest Heritage Consolidated
Interest Income ------------- ---------- ------------
<S> <C> <C> <C>
Interest and fees on loans............................... $ 203,884 $ 48,156 $ 252,040
Interest on securities................................... 69,148 23,326 92,474
Interest on funds sold and other short-term
investments.......................................... 2,672 2,378 5,050
---------- ---------- ----------
Total interest income................................ 275,704 73,860 349,564
---------- ---------- ----------
Interest Expense
Interest on deposits..................................... 97,602 31,516 129,118
Interest on short-term borrowings........................ 44,690 1,848 46,538
---------- ---------- ----------
Total interest expense............................... 142,292 33,364 175,656
---------- ---------- ----------
Net interest income.................................. 133,412 40,496 173,908
Provision for Loan Losses................................ 11,454 200 11,654
---------- ---------- ----------
Net interest income after provision
for loan losses..................................... 121,958 40,296 162,254
---------- ---------- ----------
Noninterest Income....................................... 33,695 6,971 40,666
Noninterest Expense...................................... 108,083 27,670 135,753
---------- ---------- ----------
Income before income tax expense..................... 47,570 19,597 67,167
Income Tax Expense....................................... 16,166 6,303 22,469
---------- ---------- ----------
Net Income........................................... $ 31,404 $ 13,294 $ 44,698
========== ========== ==========
Net Income Per Share/(1)/............................ $ 1.55 $ 1.52
========== ==========
Net Income Per Share, assuming dilution/(2)/......... $ 1.53 $ 1.49
========== ==========
Average Shares Outstanding/(1)/...................... 20,229 29,391
========== ==========
Average Shares Outstanding assuming
dilution/(2)/....................................... 20,476 30,067
========== ==========
</TABLE>
- ------------------------------
Footnotes to Pro Forma Combining Financial Statements:
/(1)/ The pro forma combined net income per share and average shares
outstanding is based upon the historical net income for First Midwest and
Heritage divided by the total pro forma average shares of the combined
entity assuming conversion of the Heritage Common Stock at the 0.7695
Exchange Ratio (see "RECENT DEVELOPMENTS -- Pending Acquisition" located
on pages 4-5 of this Prospectus).
/(2)/ The pro forma combined net income per share, assuming dilution, and
average shares outstanding, assuming dilution, is based upon the
historical net income of First Midwest and Heritage divided by the total
pro forma average shares of the combined entity, adjusted for the
potential dilutive effect of shares issued under the entities stock
option plans, assuming conversion of the Heritage Common Stock at the
0.7695 Exchange Ratio (see "RECENT DEVELOPMENTS -- Pending Acquisition"
located on pages 4-5 of this Prospectus).
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Hinshaw & Culbertson, Chicago, Illinois.
15
<PAGE>
EXPERTS
The consolidated financial statements of the Company at December 31,
1997 and 1996, and for each of the two years in the period ended December
31, 1997, included in the Company's Annual Report (Form 10-K) have been
audited by Ernst & Young LLP, independent auditors, to the extent indicated
in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements have been incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of the Company for the year ended
December 31, 1995, have been incorporated by reference herein in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, which report is incorporated by reference herein upon the
authority of said firm as experts in accounting and auditing.
The consolidated financial statements of SparBank as of December 31,
1996, and for each of the two years in the period then ended, have been
incorporated in this Prospectus by reference herein in reliance upon the
report of Grant Thornton LLP, independent certified public accountants,
which report is incorporated by reference herein upon the authority of such
firm as experts in accounting and auditing.
AVAILABLE INFORMATION
The Company is subject to the informational reporting 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 Commission (File Number 0-10967). Such reports, proxy statements
and other information can be inspected and copied at the public reference
facilities of the Commission, at 450 Fifth Street, N.W., Washington, D.C.
20549 and at the Regional Offices of the Commission at the following
locations: Seven World Trade Center, Suite 1300, New York, New York, 10048;
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. In addition, the Commission maintains a website (http://www.sec.gov)
that contains certain reports, proxy statements and other information
regarding the Company that the Company files electronically with the
Commission. In addition, such reports, proxy statements, and other
information concerning the Company can be inspected at the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington,
D.C. 20006.
This Prospectus constitutes a part of a Registration Statement filed by
the Company with the Commission under the Securities Act. This Prospectus
does not contain all of the information set forth in the Registration
Statement, certain items of which are contained in exhibits to the
Registration Statement as permitted by the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and to
the exhibits thereto for further information with respect to the Company.
Any statements contained herein concerning the provisions of any contract,
agreement or other document are not necessarily complete and, in each
instance, reference is made to the copy of
16
<PAGE>
such contract, agreement or other 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 DOCUMENTS BY REFERENCE
The following documents which have heretofore been filed by the Company
with the Commission are incorporated by reference in this Prospectus:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
2. The Company's Current Report on Form 8-K filed on January 23, 1998;
and
3. The description of the Common Stock, $.01 par value, and Preferred
Stock purchase rights associated with the Common Stock of the
Company, no par value, as contained in the Company's Registration
Statement on Form 8-A, dated February 17, 1989, as amended by
subsequently filed reports on Form 8-A on November 21, 1995 and
June 30, 1997.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the offering made by
this Prospectus shall be deemed to be incorporated by reference herein and
to be a part hereof. Any statements contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed
to constitute a part of this Prospectus, except as so modified or
superseded.
This Prospectus incorporates documents by reference which are not
presented herein or delivered herewith. Such documents (other than exhibits
to such documents unless such exhibits are specifically incorporated by
reference) are available to any person, including any beneficial owner, to
whom this Prospectus is delivered, on written or oral request, without
charge, directed to First Midwest Bancorp, Inc., at its principal executive
offices, 300 Park Boulevard, Suite 405, Itasca, Illinois 60143-0459;
Attention: Corporate Communications Director (630) 875-7450.
17
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 15. Indemnification of Directors and Officers
Under Delaware law, a corporation may indemnify any person who was or
is a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of his service as a
director or officer of the corporation, or his service, at the corporation's
request, as a director, officer, employee or agent of another corporation or
other enterprise, against expenses (including attorneys' fees) that are
actually and reasonably incurred by him ("Expenses"), and judgments, fines
and amounts paid in settlement that are actually and reasonably incurred by
him, in connection with the defense or settlement of such action, provided
that he 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 action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. Although Delaware law permits a corporation to
indemnify any person referred to above against Expenses in connection with
the defense or settlement of an action by or in the right of the
corporation, provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests, if such person has been judged liable to the corporation,
indemnification is only permitted to the extent that the Court of Chancery
(or the court in which the action was brought) determines that, despite the
adjudication of liability, such person is entitled to indemnity for such
Expenses as the court deems proper. The determination as to whether a
person seeking indemnification has met the required standard of conduct is
to be made (1) by a majority vote of a quorum of disinterested members of
the board of directors, or (2) by independent legal counsel in a written
opinion, if such a quorum does not exist or if the disinterested directors
so direct, or (3) by the stockholders. The General Corporation Law of the
State of Delaware also provides for mandatory indemnification of any
director, officer, employee or agent against Expenses to the extent such
person has been successful in any proceeding covered by the statute. In
addition, the General Corporation Law of the State of Delaware provides the
general authorization of advancement of a director's or officer's litigation
expenses in lieu of requiring the authorization of such advancement by the
board of directors in specific cases, and that indemnification and
advancement of expenses provided by the statute shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement or
otherwise.
The Company's Amended and Restated By-laws and Restated Certificate of
Incorporation provide for indemnification of the Company's directors,
officers, employees and other agents to the fullest extent not prohibited by
Delaware law.
The Company has entered into agreements to indemnify its directors and
executive officers, in addition to the indemnification provided for in the
Company's Amended and Restated By-Laws and Restated Certificate of
Incorporation. These agreements, among other things, will indemnify the
Company's directors and executive officers for all direct and indirect
expenses and costs (including, without limitation, all reasonable attorneys'
fees and related disbursements, other out of pocket costs and reasonable
compensation for time spent by such persons for which they are not otherwise
compensated by the Company or any third party) and liabilities of any type
whatsoever (including, but not limited to, judgments, fines and settlement
fees) actually and reasonably incurred by such person
II-1
<PAGE>
in connection with either the investigation, defense, settlement or appeal
of any threatened, pending or completed action suit or other proceeding,
including any action by or in the right of the Company, arising out of such
person's services as a director, officer, employee or other agent of the
Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company. The
Company believes that these provisions and agreements are necessary to
attract and retain talented and experienced directors and officers.
The Company's Restated Certificate of Incorporation is consistent with
Section 102(b)(7) of the Delaware General Corporation Law, which generally
permits a corporation to include a provision limiting the personal liability
of a director in the corporation's certificate of incorporation. With
limitations, this provision eliminates the personal liability of the
Company's directors to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director. However, this provision does not
eliminate director liability: (1) for breaches of the duty of loyalty to the
Company and its stockholders; (2) for acts of omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (3) for
transactions from which a director derives improper personal benefit; or (4)
under Section 174 of the Delaware General Corporation Law ("Section 174").
Section 174 makes directors personally liable for unlawful dividends and
stock repurchases or redemptions and expressly sets forth a negligence
standard with respect to such liability. While this provision protects the
directors from awards for monetary damages for breaches of their duty of
care, it does not eliminate their duty of care. The limitations in this
provision have no effect on claims arising under the securities laws.
The Company maintains liability insurance for the benefit of its
directors and officers.
Item 16. Exhibits.
See Exhibit Index on Page II-6.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a) (3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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
II-2
<PAGE>
was registered) and any deviation from the low or high end 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 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the registration statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act) 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.
(c) 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 set forth
or described in Item 15 of this Registration Statement, 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 itself is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 post-effective
amendment no. 1 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized in the Village of Itasca, State
of Illinois, this 5th day of March, 1998.
FIRST MIDWEST BANCORP, INC.
By: /s/Robert P. O'Meara
------------------------------------------
Robert P. O'Meara
President and Chief Executive Officer
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/Clarence D. Obertwortmann * Chairman of the Board of Directors
--------------------------------------
Clarence D. Oberwortmann
/s/Andrew B. Barber * Vice Chairman of the Board of Directors
--------------------------------------
Andrew B. Barber
/s/Robert P. O'Meara President, Principal Executive Officer
-------------------------------------- and Director
Robert P. O'Meara
/s/John M. O'Meara * Executive Vice President, Principal
-------------------------------------- Operating Officer and Director
John M. O'Meara
/s/Donald J. Swistowicz Executive Vice President, Principal
-------------------------------------- Financial and Accounting Officer
Donald J. Swistowicz
/s/Vernon A. Brunner * Director
--------------------------------------
Vernon A. Brunner
/s/Bruce S.Chelberg * Director
--------------------------------------
Bruce S. Chelberg
/s/William J. Cowlin * Director
--------------------------------------
William J. Cowlin
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
/s/O. Ralph Edward * Director
--------------------------------------
O. Ralph Edwards
/s/Joseph W. England * Director
--------------------------------------
Joseph W. England
/s/Thomas M. Garvin * Director
--------------------------------------
Thomas M. Garvin
/s/J. Stephen Vanderwoude * Director
--------------------------------------
J. Stephen Vanderwoude
</TABLE>
__________
*By Donald J. Swistowicz or Robert P. O'Meara, as Attorney-in-fact.
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibits Description Page No.
- -------- ----------- ----------
<C> <S> <C>
3 Restated Certificate of Incorporation of the Company is
incorporated herein by reference to Exhibit 3 to Quarterly
Report on Form 10-Q dated March 31, 1996.
3.1 Amended and Restated By-laws of the Company are
incorporated herein by reference to Exhibit 3.1 to the
Company's Annual Report on Form 10-K dated December 31,
1994.
4 Rights Agreement dated February 15, 1989 is incorporated
herein by reference to the Company's Form 8-A filed with the
Securities and Exchange Commission on February 17, 1989.
4.1 Amended and Restated Rights Agreement, Form of Rights
Certificate and Designation of Series A Preferred Stock of the
Company, dated November 15, 1995, are incorporated herein
by reference to Exhibits (1) through (3) of the Company's
Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on November 21, 1995, and the
First Amendment to Rights Agreement, dated June 18, 1997, is
incorporated herein by reference to Exhibit (4) of the
Company's Amendment No. 2 to the Registration Statement on
Form 8-A filed with the Securities and Exchange Commission
on June 30, 1997.
5 Opinion of Hinshaw & Culbertson regarding legality.*
10.1 Investment Agreement dated June 18, 1997 between the
Company and all of the stockholders of SparBank,
Incorporated.*
23.1 Consent of Ernst & Young LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Hinshaw & Culbertson (included in Exhibit 5).*
23.4 Consent of Grant Thornton LLP.
24 Power of Attorney*
</TABLE>
* Previously filed.
II-6
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-37809) and
related Prospectus of First Midwest Bancorp, Inc. for the registration of
1,520,611 shares of its common stock and to the incorporation by reference
therein of our report dated January 20, 1998, with respect to the
consolidated financial statements of First Midwest Bancorp. Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1997, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
March 2, 1998
<PAGE>
EXHIBIT 23.2
Consent of Independent Accountants
----------------------------------
The Board of Directors
First Midwest Bancorp, Inc.
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
March 4, 1998
<PAGE>
EXHIBIT 23.4
Consent of Independent Accountants
----------------------------------
We have issued our report dated May 23, 1997, on the consolidated financial
statements of SparBank, Incorporated and Subsidiary as of December 31, 1996
and for each of the two years in the period ended December 31, 1996,
included in the Annual Report on Form 10-K of First Midwest Bancorp, Inc.
for the year ended December 31, 1997. We hereby consent to the
incorporation by reference of our report in the Registration Statement of
First Midwest Bancorp on the Post-Effective Amendment No. 1 to form S-3
(File No. 333-37809) and to the use of our name as it appears under the
caption "EXPERTS."
/s/ Grant Thornton LLP
Chicago, Illinois
March 4, 1998
