-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OPbmvSRSfMI/zL1m8/m2xcrjxVVVpWxhaAjYETxlyWiOIBKmsPOIfbwAWgR7GMjc 4VaTxVQ4uDcMIxNzYtlLwA== 0000702325-95-000007.txt : 19951220 0000702325-95-000007.hdr.sgml : 19951220 ACCESSION NUMBER: 0000702325-95-000007 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19951219 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST MIDWEST BANCORP INC CENTRAL INDEX KEY: 0000702325 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 363161078 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62581 FILM NUMBER: 95602698 BUSINESS ADDRESS: STREET 1: 300 PARK BLVD SUITE 405 STREET 2: P O BOX 459 CITY: ITASCA STATE: IL ZIP: 60143-0459 BUSINESS PHONE: 7088757450 MAIL ADDRESS: STREET 1: 300 PARK BLVD SUITE 405 STREET 2: P O BOOX 459 CITY: ITASCA STATE: IL ZIP: 60143-0459 S-4/A 1 As filed with the Securities and Exchange Commission on December 19, 1995 Registration No. 33-62581 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST-EFFECTIVE Amendment No. 1 On Form S-8 To Form S-4 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 of Incorporation) (I.R.S. Employer Identification Number) 300 Park Boulevard Suite 405 P.O. Box 459 Itasca, Illinois 60143-0459 (Address of Principal Executive Offices) CF BANCORP, INC. 1992 STOCK OPTION AND INCENTIVE PLAN (Full Title of Plan) DONALD J. SWISTOWICZ Executive Vice President 300 Park Boulevard Suite 405 P.O. Box 459 Itasca, Illinois 60143-0459 (708) 875-7460 (Name, address, including zip code, and telephone number, including area code, of agent for service) * Filed as Post-Effective Amendment No. 1 on Form S-8 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-62581) pursuant to the procedure described herein. See "INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS". INTRODUCTORY STATEMENT NOT FORMING PART OF THE PROSPECTUS An Agreement and Plan of Merger (the "Agreement"), dated as of May 31, 1995, was entered into by and between First Midwest Bancorp, Inc. a Delaware corporation ("First Midwest" or the "Registrant"), and CF Bancorp, Inc., a Delaware corporation ("CF"). Pursuant to the Agreement, CF will merge with and into First Midwest, the separate existence of CF will cease and Citizens Federal Savings Bank ("Citizens Federal"), a wholly owned subsidiary of CF and its principal asset, will become a wholly owned subsidiary of First Midwest (the "Merger"). As a result of the Merger, First Midwest will become the successor issuer to CF, which, prior to the Merger, had been a reporting company under the Securities Exchange Act of 1934. Pursuant to the Agreement, at the effective time of the Merger, First Midwest will assume all obligations associated with the CF Bancorp, Inc. 1992 Stock Option and Incentive Plan ("CF Option Plan") pursuant to which First Midwest may issue after the effective time of the Merger up to 99,346 shares of common stock, no par value per share, including the associated Preferred Share Purchase Rights ("First Midwest Stock"), upon exercise of stock options granted and outstanding at the time of the Merger under the CF Option Plan. Prior to the effective time of the Merger, the shares of CF common stock, $.01 par value, issuable upon exercise of stock options granted under the predecessor to the CF Option Plan were covered by an effective Registration Statement on Form S-8 (Registration No. 33-56542). The 99,346 shares of First Midwest Stock which may be issued upon exercise of stock options granted under the CF Option Plan are covered by an effective Registration Statement on Form S-4 (Registration No. 33-62581) which was declared effective by the Securities and Exchange Commission on October 5, 1995 (the "S-4 Registration Statement"). First Midwest hereby amends the S-4 Registration Statement by filing this Post-Effective Amendment No. 1 on Form S-8 with respect to the shares of First Midwest Stock issuable upon exercise of stock options granted under the CF Option Plan. PART 1 INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS Note: The documents containing the information required by this section will be given to employees participating in the CF Option Plan and are not required to be filed with the Commission as a part of the Registration Statement or as an Exhibit. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents of the Registrant or First Midwest filed or to be filed with the Commission are incorporated herein by reference as of their respective date: (a)First Midwest's Annual Report on Form 10-K for the year ended December 31, 1994. (b)All other reports filed by First Midwest pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 31, 1994. (c)The description of the no par value Common Stock of First Midwest contained in First Midwest's Registration Statement on Form S-4 (Registration No. 33-62581) filed with the Commission on September 12, 1995 and all amendments and reports filed by the Registrant for the purpose of updating such description. (d)The description of the Preferred Share Purchase Rights contained in First Midwest's Registration Statement on Form 8-A filed with the Commission on November 21, 1995 and all amendments and reports filed by the Registrant for the purpose of updating such description. (e)First Midwest's Current Reports on Form 8-K filed on November 21, 1995 and December 1, 1995. All documents subsequently filed by First Midwest pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the filing of a post-effective amendment to the Registration Statement relating to the Common Stock offered hereby which indicates that all such Common Stock has been sold, or which deregisters all such Common Stock remaining unsold shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. 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 bylaw, agreement or otherwise. First Midwest's Restated Certificate of Incorporation (the "Certificate") and its Bylaws provide for indemnification of First Midwest's directors, officers, employees and other agents to the fullest extent permitted by Delaware law. First Midwest has entered into agreements to indemnify its directors and executive officers, in addition to the indemnification provided for in First Midwest's Restated Certificate and its Bylaws. These agreements, among other things, will indemnify First Midwest's directors and executive officers for all direct and indirect expenses and costs (including, without limitation, all reasonable attorneys' fees and related disbursement, other out of pocket costs and reasonable compensation for time spent by such persons for which they are not otherwise compensated by First Midwest 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 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 corporation, arising out of such person's services as a director, officer, employee or other agent of First Midwest, any subsidiary of First Midwest or any other company or enterprise to which the person provides services at the request of First Midwest. First Midwest's Certificate is consistent with Section 102(b)(7) of the Delaware General Corporation Law, which generally permits a company to include a provision limiting the personal liability of a director in the company's certificate of incorporation. With limitations, this provision eliminates the personal liability of First Midwest's directors to First Midwest 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 First Midwest 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 federal securities laws. First Midwest maintains liability insurance for the benefit of its directors and officers. The effect of the foregoing provisions of the General Corporation Law of the State of Delaware and the Registrant's Amended and Restated Bylaws would be to permit such indemnification by the Registrant for liabilities arising under the Securities Act of 1933. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following are filed as exhibits to this Registration Statement: Exhibit No. Description 4. Restated Certificate of Incorporation is incorporated herein by reference to Exhibit 4.1 to First Midwest's Registration Statement on Form S-3 (Registration No. 33-20439), filed with the Securities and Exchange Commission on March 2, 1988. 4.1 Restated Bylaws of First Midwest are incorporated herein by reference to Exhibit 3.1 to First Midwest's Annual Report on Form 10-K for the year ended December 31, 1993. 4.2 Amended and Restated Rights Agreement, dated November 15, 1995, is incorporated herein by reference to First Midwest's Form 8-A filed with the Securities and Exchange Commission on November 21, 1995. 4.3 Amended Certificate of Designation of Series A Preferred Stock. 5. & 8. Opinion of Hinshaw & Culbertson is incorporated herein by reference to Exhibits 5 and 8 to First Midwest's Registration Statement on Form S-4 (Registration No. 33-62581) filed with the Commission on September 12, 1995. 23. Consent of Hinshaw & Culbertson. 23.1 Consent of KPMG Peat Marwick LLP. 23.2 Consent of McGladrey & Pullen, LLP. 24. Powers of Attorney (filed as part of the signature page hereto). 99. CF Bancorp, Inc. 1992 Stock Option and Incentive Plan, form of Incentive Stock Option Agreement and form of Nonqualified Stock Option Agreement is incorporated herein by reference to CF's Registration Statement on Form S-8 (Registration No. 33-56542) filed with the Commission on December 30, 1992. 99.1 Amendment to the CF Bancorp, Inc. 1992 Stock Option and Incentive Plan adopted by CF's Board of Directors on November 20, 1995. ITEM 9. UNDERTAKINGS. (A)RULE 415 OFFERINGS. 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 to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. (2)That, for the purpose of determining any liability under the Act, 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 that remain unsold at the termination of the offering. (B)FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (H)ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION STATEMENT ON FORM S-8. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, First Midwest certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Village of Itasca, State of Illinois on the 18th day of December, 1995. FIRST MIDWEST BANCORP, INC. By: ROBERT P. O'MEARA Robert P. O'Meara President and Chief Executive Officer POWER OF ATTORNEY The undersigned officers and directors of First Midwest Bancorp, Inc., do hereby constitute and appoint Robert P. O'Meara and Donald J. Swistowicz, and either one of them, as their attorneys-in fact with power and authority to do any and all acts and things and to execute any and all instruments which said attorneys-in-fact, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to the Registration Statement, to any and all amendments, both pre- effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereto, and each of the undersigned hereby ratifies and confirms all that said attorneys- in-fact or any of them shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on December 18, 1995 by the following persons in their capacities indicated. Signature Capacity CLARENCE D. OBERWORTMANN Chairman of the Board of Directors Clarence D. Oberwortmann ANDREW B. BARBER Vice Chairman of the Board of Directors Andrew B. Barber ROBERT P. O'MEARA President, Principal Executive Robert P. O'Meara Officer and Director JOHN M. O'MEARA Executive Vice President, Principal John M. O'Meara Operating Officer and Director DONALD J. SWISTOWICZ Executive Vice President, Principal Donald J. Swistowicz Financial and Accounting Officer BRUCE S. CHELBERG Director Bruce S. Chelberg O. RALPH EDWARDS Director O. Ralph Edwards JOSEPH W. ENGLAND Director Joseph W. England THOMAS M. GARVIN Director Thomas M. Garvin ALAN M. HALLENE Director Alan M. Hallene SISTER NORMA JANSSEN, O.S.F. Director Sister Norma Janssen, O.S.F. ROBERT E. JOYCE Director Robert E. Joyce J. STEPHEN VANDERWOUDE Director J. Stephen Vanderwoude EXHIBIT INDEX Sequential Exhibit Page Number Document Description Number 4.3 Amended Certificate of Designation of Series A Preferred Stock. 23. Consent of Hinshaw & Culbertson. 23.1 Consent of KPMG Peat Marwick LLP. 23.2 Consent of McGladrey & Pullen, LLP. 99.1 Amendment to the CF Bancorp, Inc. 1992 Stock Option and Incentive Plan. EX-4.3 2 EXHIBIT 4.3 AMENDED CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK OF FIRST MIDWEST BANCORP, INC. PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE We, Robert P. O'Meara, President and Chief Executive Officer, and Alan R. Milasius, Senior Vice President and Secretary, of First Midwest Bancorp, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY: That pursuant to the authority conferred upon the Board of Directors, the said Board of Directors on February 15, 1989 adopted resolutions creating a series of 120,000 shares of Preferred Stock designated as Series A Preferred Stock; and That pursuant to the authority conferred upon the Board of Directors by the Certificate of Designation of Series A Preferred Stock, the said Board of Directors on May 19, 1993 adopted a resolution amending the Certificate of Designation of Series A Preferred Stock by which the number of shares of Series A Preferred Stock was increased from 120,000 to 130,000; and, That pursuant to the authority conferred upon the Board of Directors by the Certificate of Designation of Series A Preferred Stock, the said Board of Directors on November 15, 1995 adopted the following resolutions amending the Certificate of Designation of Series A Preferred Stock: WHEREAS, on February 15, 1989, this Board of Directors adopted resolutions creating a series of 120,000 shares of Preferred Stock designated as Series A Preferred Stock; and, WHEREAS, on May 19, 1993, this Board of Directors adopted resolutions amending the number of shares of Series A Preferred Stock from 120,000 to 130,000; and, WHEREAS, no shares of Series A Preferred Stock have been issued; and, WHEREAS, this Board of Directors desires to increase the number of shares of Series A Preferred Stock from 130,000 to 200,000. NOW, THEREFORE, BE IT RESOLVED, that the first sentence of Section (a) of the Form of Certificate of Designation of Series A Preferred Stock of this Corporation is hereby amended to read as follows: (a) Designation and Number of Shares. The distinctive designation of such series shall be "Series A Preferred Stock" (hereinafter sometimes called the "Series A Preferred Stock") and the number of shares constituting such series shall be 200,000. FURTHER RESOLVED, that the statements contained in the foregoing resolution amending the said Series A Preferred Stock by creating 70,000 new shares of Series A Preferred Stock shall, upon the effective date of said amendment, be deemed to be included in and be a part of the Restated Certificate of Incorporation of this Corporation pursuant to the provisions of Sections 104 and 151 of the General Corporation Law of Delaware. IN WITNESS WHEREOF, we have executed and subscribed this Amended Certificate and do affirm the foregoing as true under the penalties of perjury as of this 15th day of November, 1995. FIRST MIDWEST BANCORP, INC. By Robert P. O'Meara, President & Chief Executive Officer By Alan R. Milasius, Senior Vice President & Secretary EX-23. 3 EXHIBIT 23 HINSHAW & CULBERTSON BELLEVILLE, ILLINOIS SUITE 300 WAUKEGAN, ILLINOIS BLOOMINGTON, ILLINOIS 222 NORTH LA SALLE STREET FT. LAUDERDALE, FLORIDA CHAMPAIGN, ILLINOIS CHICAGO, ILLINOIS 60601-1081 MIAMI, FLORIDA JOLIET, ILLINOIS TAMPA, FLORIDA LISLE, ILLINOIS 312.704.3000 ST. LOUIS, MISSOURI PEORIA, ILLINOIS ________ APPLETON, WISCONSIN ROCKFORD, ILLINOIS TELEFAX 312.704.3001 BROOKFIELD, WISCONSIN SPRINGFIELD, ILLINOIS MILWAUKEE, WISCONSIN December 15, 1995 WRITER'S DIRECT DIAL NO. FILE NO. (312) 704-3852 728693 VIA FACSIMILE & AIRBORNE EXPRESS First Midwest Bancorp, Inc. 300 Park Boulevard, Suite 405 P.O. Box 459 Itasca, Illinois 60143-0459 RE: REGISTRATION STATEMENT ON FORM S-4 (33-62581) Gentlemen: We hereby consent to the reference to our firm under the captions "Opinions" and "Certain Federal Income Tax Consequences of the Merger." Very truly yours, TIMOTHY M. SULLIVAN Timothy M. Sullivan TMS/mm A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 118359-1-DS2 EX-23.1 4 EXHIBIT 23.1 KPMG Peat Marwick LLP The Board of Directors First Midwest Bancorp, Inc.: We consent to incorporation by reference in the registration statement of the Post-Effective Amendment No. 1 on Form S-8 to Form S-4 of First Midwest Bancorp, Inc. of our report dated January 20, 1995, relating to the consolidated statements of condition of First Midwest Bancorp, Inc. and subsidiaries as of December 31, 1994 and 1993, and the related consolidated statements of income, changes in stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 1994, which report appears in the December 31, 1994, annual report on Form 10-K of First Midwest Bancorp, Inc. KPMG PEAT MARWICK LLP Chicago, Illinois December 18, 1995 Member Firm of Klynveld Peat Marwick Goerdeler EX-23.2 5 EXHIBIT 23.2 MCGLADREY & PULLEN, LLP Certified Public Accountants and Consultants INDEPENDENT AUDITOR'S CONSENT We consent to the incorporation by reference in the prospectus and Registration Statement on Form S-8 of First Midwest Bancorp, Inc. of the Form 10-K Annual Report of CF Bancorp, Inc. for the fiscal year ended June 30, 1995. McGLADREY & PULLEN, LLP Davenport, Iowa December 18, 1995 EX-99.1 6 EXHIBIT 99.1 AMENDMENT TO THE CF BANCORP, INC. 1992 STOCK OPTION AND INCENTIVE PLAN WHEREAS, CF Bancorp, Inc. (the "Company") heretofore adopted the CF Bancorp, Inc. 1992 Stock Option and Incentive Plan, as amended (the "Plan"); and WHEREAS, pursuant to Section 4.02 of the Merger Agreement dated as of May 31, 1995, between First Midwest Bancorp, Inc. and the Company (the "Merger Agreement"), each option which is outstanding immediately prior to the Effective Time of the Merger contemplated by the Merger Agreement shall, by virtue of the Merger, become and represent an option to purchase such number of shares of common stock, no par value, of First Midwest Bancorp, Inc. at such prices as determined pursuant to the Merger Agreement; and WHEREAS, in the event of a merger, Section 13 of the Plan directs the Committee appointed under the Plan to make appropriate changes in the number and type of shares subject to options and the prices specified therein; and WHEREAS, the Committee has approved the amendment to the Plan set forth herein to make the changes contemplated by Section 4.02 of the Merger Agreement and recommends approval thereof by the Board of Directors; and WHEREAS, the Board has received such recommendation and has adopted and approved such amendment. NOW, THEREFORE, the Company hereby amends the Plan, effective immediately prior to the Effective Time of the Merger contemplated by the Merger Agreement, by adding a new Section 22 thereto to read: 22. Effect of Merger Involving First Midwest Bancorp, Inc. Notwithstanding any other provision of the Plan, or of any Option agreement, the following provisions shall be applicable with respect to each Option outstanding immediately prior to the effective date of this Section 22: (a) Number and Type of Shares. Each Option shall cover the number of shares of common stock, no par value, of First Midwest Bancorp, Inc. (including associated Preferred Share Purchase Rights) ("First Midwest Common Stock") determined by multiplying the number of Shares covered by the Option by 1.4545 and then rounding down to the nearest full share of First Midwest Common Stock. (b) Exercise Price. The exercise price per share of First Midwest Common Stock covered by each such Option shall be determined by dividing the exercise price per Share under each such Option by 1.4545 and then rounding down to the nearest whole cent. (c) Other. Except as provided in this Section 22, each Option outstanding as of the effective date of this Section 22 shall be exercisable on the same terms and subject to the same conditions as were applicable to the Option immediately prior to the effective date of this Section 22, giving effect to the provisions of Section 15 of this Plan relating to the acceleration of the exercisability of such Options as a result of the Merger. Upon the Merger, the "Corporation" for purposes of this Plan shall mean First Midwest Bancorp, Inc., successor to the Corporation. (d) Committee. As of the effective date of this Section 22, for all purposes under each Option and this Plan generally, the Committee shall be the Compensation Committee of the Board of Directors of First Midwest Bancorp, Inc., or such other Committee thereof, as may from time to time act as the Committee under the First Midwest Bancorp, Inc. 1989 Omnibus Stock and Incentive Plan. IN WITNESS WHEREOF, in accordance with the authorization and direction of the Board of Directors, this Amendment has been executed in the name and on behalf of CF Bancorp, Inc. by the undersigned duly authorized officer, effective as of the date set forth herein. CF BANCORP, INC. PAUL L. ECKERT Paul L. Eckert, Chairman of the Board ATTEST: GREG I. BOHAC Secretary g:\slj\exh99.s-8 -----END PRIVACY-ENHANCED MESSAGE-----