mbfis3asr.htm
As
filed with the Securities and Exchange Commission on December 19,
2008
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MB
FINANCIAL, INC.
(Exact
name of registrant as specified in its charter)
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Maryland
(State
or other jurisdiction of
incorporation
or organization)
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36-4460265
(I.R.S.
Employer
Identification
Number)
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800
West Madison Street
Chicago,
Illinois 60607
(888) 422-6562
(Address,
including zip code, and telephone number,
including
area code, of registrant’s principal executive offices)
Jill
E. York
Vice
President and Chief Financial Officer
MB
Financial, Inc.
6111
N. River Road
Rosemont,
Illinois 60018
(847) 653-1992
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
With
a copy to:
Craig
M. Scheer, P.C.
Silver,
Freedman & Taff, L.L.P.
3299
K Street, N.W., Suite 100
Washington,
D.C. 20007
(202) 295-4500
Approximate date of commencement of
proposed sale to the public: From time to time after the
effective date of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box.
o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the Securities Act) other than securities offered only in connection
with dividend or interest reinvestment plans, check the following
box.
þ
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
þ
If this
Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to
Rule 413(b) under the Securities Act, check the following
box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check
one)
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Large
Accelerated Filer þ
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Accelerated
Filer o
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Non-Accelerated
Filer o
(Do
not check if a smaller reporting company)
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Smaller
Reporting Company
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered(1)
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock
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(2)
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(2)
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(2)
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(2)
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Preferred
Stock
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(2)
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(2)
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(2)
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(2)
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Depositary
Shares
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(2)(3)
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(2)(3)
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(2)(3)
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(2)
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Purchase
Contracts
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(2)(4)
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(2)(4)
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(2)(4)
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(2)
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Warrants
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(2)(5)
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(2)(5)
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(2)(5)
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(2)
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Units
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(2)(4)
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(2)(4)
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(2)(4)
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(2)
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_____________________
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(1)
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The
securities of each class may be offered and sold by the Registrant and/or
may be offered and sold, from time to time, by one or more selling
securityholders. The selling securityholders may purchase the securities
directly from the Registrant, or from one or more underwriters, dealers or
agents.
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(2)
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An
indeterminate aggregate initial offering price or number of the securities
of each identified class is being registered. Separate consideration may
or may not be received for securities that are issuable on exercise,
conversion or exchange of other securities or that are issued in units or
represented by depositary shares. In accordance with Rules 456(b) and
457(r), the Registrant is deferring payment of all of the registration fee
and will pay the registration fee subsequently in advance or on a
pay-as-you-go basis.
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(3)
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Each
depositary share will be issued under a deposit agreement, will represent
an interest in a fractional share or multiple shares of preferred stock
and will be evidenced by a depositary receipt.
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(4)
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Purchase
contracts may be sold separately or as parts of units consisting of a
purchase contract and other securities registered hereunder, which may or
may not be separable from one another. Each unit will be issued under a
unit agreement. Because units will consist of a combination of other
securities registered hereunder, no additional registration fee is
required for the units.
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(5)
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Warrants
will represent the right to purchase equity securities registered
hereby. Because the warrants will provide a right to purchase
the equity securities registered hereunder, no additional registration fee
is required for the warrants.
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PROSPECTUS
MB
FINANCIAL, INC.
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Purchase
Contracts
Units
The
securities listed above may be offered and sold by us and/or may be offered and
sold, from time to time, by one or more selling securityholders referred to in
this prospectus or identified by us in the future. To the extent not
described in this prospectus, we will provide the specific terms of these
securities in supplements to this prospectus. You should read this prospectus
and the applicable prospectus supplement carefully before you invest in the
securities described in the applicable prospectus supplement.
This
prospectus may not be used to sell securities unless accompanied by the
applicable prospectus supplement.
Our
common stock is listed on the NASDAQ Global Select Market under the symbol
“MBFI.”
You
should refer to the risk factors included in our periodic reports, the
applicable prospectus supplement and other information that we file with the
Securities and Exchange Commission and carefully consider that information
before buying our securities. See “Risk Factors” on page 3.
These
securities will be our equity securities or our unsecured obligations and will
not be savings accounts, deposits or other obligations of any bank or non-bank
subsidiary of ours and are not insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined that this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
This
prospectus is dated December 19, 2008
TABLE
OF CONTENTS
ABOUT THIS
PROSPECTUS....................................................................................................................................................iii
PROSPECTUS
SUMMARY.......................................................................................................................................................1
RISK
FACTORS.........................................................................................................................................................................3
USE
OF PROCEEDS..................................................................................................................................................................3
DESCRIPTION
OF CAPITAL STOCK.....................................................................................................................................3
DESCRIPTION
OF UNITS......................................................................................................................................................19
SELLING
SECURITYHOLDERS.............................................................................................................................................20
PLAN
OF DISTRIBUTION......................................................................................................................................................21
LEGAL
MATTERS...................................................................................................................................................................23
EXPERTS..................................................................................................................................................................................23
Unless
otherwise mentioned or unless the context requires otherwise, all references in
this prospectus to “MB Financial,” “we,” “us,” “our,” or similar references mean
MB Financial, Inc. and its subsidiaries on a consolidated basis.
This
prospectus is a part of a registration statement that we filed with the
Securities and Exchange Commission (“SEC”) using a “shelf” registration process.
Under this shelf registration statement, we may offer and sell any combination
of the securities identified in this prospectus in one or more
offerings. Each time we offer and sell securities, we will provide a
prospectus supplement and, if applicable, a pricing supplement containing
specific information about the terms of the securities being offered. That
prospectus supplement may include a discussion of any risk factors or other
special considerations that apply to those securities. In addition,
under this shelf registration process, selling securityholders may, from time to
time, offer and sell, in one or more offerings, the securities described in this
prospectus. We may provide a prospectus supplement containing specific
information about the terms of a particular offering by the selling
securityholders.
If there
is any inconsistency between the information in this prospectus (including the
information incorporated by reference therein) and any prospectus supplement or
pricing supplement, you should rely on the information in that prospectus
supplement or pricing supplement. You should read both this prospectus and any
prospectus supplement and pricing supplement together with additional
information described under the heading “Where You Can Find More
Information.”
The
registration statement containing this prospectus, including exhibits to the
registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement can be read
at the SEC web site or at the SEC offices mentioned under the heading “Where You
Can Find More Information.”
WHERE
YOU CAN FIND MORE INFORMATION
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on its public
reference room. In addition, our SEC filings are available to the public at the
SEC’s web site at http://www.sec.gov.
The SEC
allows us to “incorporate by reference” into this prospectus the information in
documents we file with it. This means that we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is considered to be a part of this prospectus and should be read with
the same care. When we update the information contained in documents that have
been incorporated by reference by making future filings with the SEC the
information incorporated by reference in this prospectus is considered to be
automatically updated and superseded. In other words, in the case of a conflict
or inconsistency between information contained in this prospectus and
information incorporated by reference into this prospectus, you should rely on
the information contained in the document that was filed later. We incorporate
by reference the documents listed below and any documents we file with the SEC
after the date of this prospectus under Section 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934 (the “Exchange Act”) and before the date
that the offering of securities by means of this prospectus is completed (other
than, in each case, documents or information deemed to have been furnished and
not filed in accordance with SEC rules):
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our
Annual Report on Form 10-K for the year ended December 31, 2007
(File No. 000-24566-01);
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our
Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,
2008, June 30, 2008 and September 30, 2008 (File
No. 000-24566-01)
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our
Current Reports on Form 8-K filed on January 14, 2008, February 25,
2008, July 28, 2008 and December 8, 2008 (File No. 000-24566-01);
and
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the
description of our common stock, par value $0.01 per share, contained
in our Registration Statement on Form 8-A filed on October 9, 2001,
and all amendments or reports filed for the purpose of updating such
description.
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You may
request a copy of these filings (other than an exhibit to a filing unless that
exhibit is specifically incorporated by reference into that filing) at no cost,
by writing or calling us at the following address:
MB
Financial, Inc.
6111 N.
River Road
Rosemont,
Illinois 60018
(847) 653-1992
Attention:
Doria L. Koros, Vice President and Secretary
You
should rely only on the information incorporated by reference or presented in
this prospectus or the applicable prospectus supplement or pricing supplement.
Neither we, nor any selling securityholders, underwriters, dealers or agents,
have authorized anyone else to provide you with different information. We and
the selling securityholders may only use this prospectus to sell securities if
it is accompanied by a prospectus supplement. These securities are
only being offered in jurisdictions where the offer is permitted. You should not
assume that the information in this prospectus or the applicable prospectus
supplement or pricing supplement is accurate as of any date other than the dates
on the front of those documents.
FORWARD-LOOKING
STATEMENTS
When used
in this prospectus, any prospectus supplement or any document incorporated
herein by reference, the words or phrases “believe,” “will,” “should,” “will
likely result,” “are expected to,” “will continue,” “is anticipated,”
“estimate,” “project,” “plans,” or similar expressions are intended to identify
“forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995. You are cautioned not to place undue
reliance on any forward-looking statements, which speak only as of the date
made. These statements may relate to our future financial
performance, strategic plans or objectives, revenues or earnings projections, or
other financial items. By their nature, these statements are subject
to numerous uncertainties that could cause actual results to differ materially
from those anticipated in the statements
Important
factors that could cause actual results to differ materially from the results
anticipated or projected include, but are not limited to, the following (1)
expected cost savings and synergies from our merger and acquisition activities
might not be realized within the expected time frames; (2) the credit risks of
lending activities, including changes in the level and direction of loan
delinquencies and write-offs and changes in estimates of the adequacy of the
allowance for loan losses; (3) competitive pressures among depository
institutions; (4) interest rate movements and their impact on customer behavior
and net interest margin; (5) the impact of repricing and competitors' pricing
initiatives on loan and deposit products; (6) fluctuations in real estate
values; (7) the ability to adapt successfully to technological changes to meet
customers' needs and developments in the market place; (8) our ability to
realize the residual values of our direct finance, leveraged, and operating
leases; (9) our ability to access cost-effective funding; (10) changes in
financial markets; (11) changes in economic conditions in general and in the
Chicago metropolitan area in particular; (12) the costs, effects and outcomes of
litigation; (13) new legislation or regulatory changes, including but not
limited to changes in federal and/or state tax laws or interpretations thereof
by taxing authorities and other governmental initiatives affecting the financial
services industry; (14) changes in accounting principles, policies or
guidelines; and (15) our future acquisitions of other depository institutions or
lines of business.
We do not
undertake any obligation to update any forward-looking statement to reflect
circumstances or events that occur after the date on which the forward-looking
statement is made.
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This
summary highlights selected information about us and a general description
of the securities that may be offered by this prospectus. This summary is
not complete and does not contain all of the information that may be
important to you. For a more complete understanding of us and the terms of
the securities we will offer, you should read carefully this entire
prospectus, including the “Risk Factors” section, the applicable
prospectus supplement for the securities and the other documents we refer
to and incorporate by reference. In particular, we incorporate important
business and financial information into this prospectus by
reference.
MB
Financial, Inc.
MB
Financial, Inc., a Maryland corporation, is a financial holding company
and is registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended. Our primary market is the Chicago
metropolitan area, in which we operate over 70 banking offices through our
bank subsidiary, MB Financial Bank, N.A. MB Financial Bank also
has one banking office in the city of Philadelphia,
Pennsylvania. Through MB Financial Bank, we offer a broad range
of financial services, primarily to small and middle market businesses and
individuals in the markets that we serve. Our primary lines of
business consist of commercial banking, retail banking and wealth
management. As of September 30, 2008, we had total assets
of $8.4 billion, deposits of $6.4 billion, stockholders’ equity of $886.9
million, an asset management and trust department with approximately $3.5
billion in assets under management, including approximately $611.5 million
that represents our own investment accounts under management.
Securities
That May Be Offered
We
and the selling securityholders may use this prospectus to offer common
stock, preferred stock, depositary shares, warrants, purchase contracts or
units in one or more offerings. A prospectus supplement, which
we will provide for each such offering, will describe the amounts, prices
and detailed terms of the securities, to the extent not described in this
prospectus, and may describe risks associated with an investment in the
securities in addition to those described in the “Risk Factors” section of
this prospectus and the documents incorporated by
reference. Terms used in this prospectus will have the meanings
described in this prospectus unless otherwise specified.
We
and the selling securityholders may sell the securities to or through
underwriters, dealers or agents or directly to purchasers. We, as well as
any agents acting on our behalf, reserve the sole right to accept or to
reject in whole or in part any proposed purchase of our securities. Each
prospectus supplement will set forth the names of any underwriters,
dealers or agents involved in the sale of our securities described in that
prospectus supplement and any applicable fee, commission or discount
arrangements with them. The common stock, preferred stock,
depositary shares and warrants that may be sold by selling securityholders
include, but are not limited to, our securities described below under
“—Securities Relating to TARP Capital Purchase Program.”
Common
Stock
We
and the selling securityholders may sell shares of our common stock, par
value $0.01 per share. In a prospectus supplement, we will describe the
aggregate number of shares offered and the offering price or prices of the
shares.
Preferred
Stock; Depositary Shares
We
and the selling securityholders may sell shares of our preferred stock in
one or more series. In a prospectus supplement, to the extent
not described in this prospectus, we will describe the specific
designation, the aggregate number of shares offered, the dividend rate or
manner of calculating the dividend rate, the dividend periods or manner of
calculating the dividend periods, the ranking of the shares of the series
with respect to dividends, liquidation and dissolution, the stated value
of the shares of the series, the voting rights of the shares of the
series, if any, whether and on what terms the shares of the series will be
convertible or exchangeable, whether and on what terms we can redeem the
shares of the series, whether we will offer depositary shares representing
shares of the series and if so, the fraction or
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multiple
of a share of preferred stock represented by each depositary share,
whether we will list the preferred stock or depositary shares on a
securities exchange and any other specific terms of the series of
preferred stock.
Warrants
We
and the selling securityholders may sell warrants to purchase shares of
preferred stock or shares of our common stock. In a prospectus supplement,
to the extent not described in this prospectus, we will inform you of the
exercise price and other specific terms of the warrants, including whether
our or your obligations, if any, under any warrants may be satisfied by
delivering or purchasing the underlying securities or their cash
value.
Purchase
Contracts
We
may issue purchase contracts, including purchase contracts issued as part
of a unit with one or more other securities, for the purchase or sale of:
our preferred stock, depositary shares or common stock; securities of an
entity not affiliated with us, a basket of those securities, an index or
indices of those securities or any combination of the foregoing;
currencies; or commodities. The price price per share of common stock,
preferred stock or depositary shares, or the price of the other
securities, currencies or commodities that are the subject of the
contract, as applicable, may be fixed at the time the purchase contracts
are issued or may be determined by reference to a specific formula
contained in the purchase contracts. We may issue purchase contracts in
such amounts and in as many distinct series as we wish.
Units
We
may sell any combination of one or more of the other securities described
in this prospectus, together as units. In a prospectus supplement, we will
describe the particular combination of securities constituting any units
and any other specific terms of the units.
Securities
Relating to TARP Capital Purchase Program
On
December 5, 2008, pursuant to the Troubled Asset Relief Program Capital
Purchase Program of the United States Department of the Treasury
(“Treasury”), we sold to Treasury 196,000 shares of our Fixed Rate
Cumulative Perpetual Preferred Stock, Series A (the “Series A Preferred
Stock”), liquidation preference amount $1,000 per share, for an aggregate
purchase price of $196.0 million, and concurrently issued to Treasury a
ten-year warrant to purchase up to 1,012,048 shares of our common stock at
an exercise price of $29.05 per share (the “Treasury Warrant”), subject to
adjustment as described under “Description of Treasury
Warrant.” The issuance of the Series A Preferred Stock and the
Treasury Warrant were completed in a private placement to Treasury exempt
from the registration requirements of the Securities Act of
1933.
We
were required under the terms of the related securities purchase agreement
between us and Treasury to register for resale the shares of the Series A
Preferred Stock, the Treasury Warrant and the shares of our common stock
underlying the Treasury Warrant (the “Treasury Warrant
Shares”). This required registration includes depositary
shares, representing fractional interests in the Series A Preferred Stock
(“Series A Depositary Shares”), in the event Treasury requests that we
deposit the Series A Preferred Stock held by Treasury with a depositary
under a depositary arrangement entered into in accordance with the
securities purchase agreement. The shares of our preferred
stock, depositary shares, warrants and shares of our common stock covered
by this prospectus include the Series A Preferred Stock or any Series A
Depositary Shares, the Treasury Warrant and the Treasury Warrant Shares,
which may be resold pursuant to this prospectus by Treasury or any person
to which Treasury has transferred its registration rights in accordance
with the securities purchase agreement between us and
Treasury. See “Selling Securityholders.” The
securities purchase agreement between us and Treasury was attached as
Exhibit 10.1 to our Current Report on Form 8-K filed on December 8, 2008
and incorporated into this prospectus by reference. See “Where
You Can Find More Information.”
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RISK
FACTORS
An
investment in our securities involves significant risks. You should carefully
consider the risks and uncertainties and the risk factors set forth in the
documents and reports filed with the SEC that are incorporated by reference into
this prospectus, as well as any risks described in any applicable prospectus
supplement, before you make an investment decision regarding our securities.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
USE
OF PROCEEDS
RATIO
OF EARNINGS TO FIXED CHARGES
Our
historical consolidated ratios of earnings to fixed charges for the periods
indicated, both including and excluding interest on deposits, are set forth in
the table below. During all periods presented below, we had no shares
of preferred stock outstanding. The ratio of earnings to fixed
charges is computed by dividing (i) income from continuing operations
before income taxes and fixed charges by (ii) total fixed charges. For
purposes of computing these ratios, fixed charges excluding interest on deposits
represents interest expense on short-term and long-term borrowings and junior
subordinated notes and an estimate of the interest component of rental expense
and fixed charges including interest on deposits represents interest on deposits
plus interest expense on short-term and long-term borrowings and junior
subordinated notes and an estimate of the interest component of rental
expense.
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Nine
Months
Ended
September
30,
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Year
Ended December 31,
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2008
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2007
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2006
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2005
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2004
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2003
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Ratio
of Earnings to
Fixed
Charges
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Excluding
interest on deposits
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2.07
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2.42
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2.97
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3.89
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6.34
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6.68
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Including
interest on deposits
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1.25
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1.35
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1.48
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1.82
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2.29
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2.16
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DESCRIPTION
OF CAPITAL STOCK
Our
authorized capital stock consists of:
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50,000,000
shares of common stock, par value $.01 per share;
and
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1,000,000
shares of preferred stock, par value $.01 per
share.
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Our
charter authorizes our Board of Directors to classify or reclassify any unissued
shares of capital stock from time to time into one or more classes or series of
stock by setting or changing in one or more respects the preferences, conversion
or other rights, voting powers, restrictions, limitations as to dividends,
qualifications or terms and conditions of redemption of such
shares. Our charter provides by its terms that it may be amended by
action of our Board of Directors without a stockholder vote to change the number
of shares of authorized capital stock. As of December 12, 2008, there
were 35,008,257 shares of our common stock issued and outstanding and 196,000
shares of our preferred stock issued and outstanding, all of which consisted of
our Series A Preferred Stock.
In this
section we describe certain features and rights of our capital stock. The
summary does not purport to be exhaustive and is qualified in its entirety by
reference to our charter and bylaws and to applicable Maryland law.
Common
Stock
General. Except as described
below under “—Anti-takeover
Effects –Voting Limitation,” each holder of our common stock is entitled
to one vote for each share on all matters to be voted upon by the common
stockholders. There are no cumulative voting rights. Subject to preferences to
which holders of the Series A Preferred Stock and any other shares of preferred
or other stock then outstanding may be entitled, holders of our common stock
will be entitled to receive ratably any dividends that may be declared from time
to time by our Board of Directors out of funds legally available for that
purpose. In the event of our liquidation, dissolution or winding up,
holders of our common stock will be entitled to share in our assets remaining
after the payment or provision for payment of our debts and other liabilities,
and the satisfaction of the liquidation preferences of the holders of the Series
A Preferred Stock and any other series of our preferred or other stock then
outstanding. Holders of our common stock have no preemptive or
conversion rights or other subscription rights. There are no
redemption or sinking fund provisions that apply to our common
stock. The rights, preferences and privileges of the holders of
common stock are subject to, and may be adversely affected by, the rights of the
holders of our Series A Preferred Stock (see “Description of Series A Preferred
Stock”) and the shares of any other series of preferred or other stock that we
may issue in the future.
Restrictions on Dividends and
Repurchases Under Agreement with Treasury. The securities
purchase agreement between us and Treasury provides that prior to the earlier of
(i) December 5, 2011 and (ii) the date on which all of the shares of the Series
A Preferred Stock have been redeemed by us or transferred by Treasury to third
parties, we may not, without the consent of Treasury, (a) increase the cash
dividend on our common stock (we currently pay a quarterly dividend on our
common stock of $0.18 per share) or (b) subject to limited exceptions, redeem,
repurchase or otherwise acquire shares of our common stock or preferred stock,
other than the Series A Preferred Stock, or trust preferred
securities.
Preferred
Stock-General
The
following summary contains a description of the general terms of the preferred
stock that we may issue, other than the Series A Preferred Stock, the terms of
which are described under “Description of Series A Preferred
Stock.” The specific terms of any series of preferred stock will be
described in the prospectus supplement relating to that series of preferred
stock. The terms of any series of preferred stock may differ from the terms
described below. Certain provisions of the preferred stock described below and
in any prospectus supplement are not complete. You should refer to the articles
supplementary with respect to the establishment of a series of preferred stock
which will be filed with the SEC in connection with the offering of such series
of preferred stock.
Overview. We are
currently authorized under our charter to issue up to 1,000,000 shares of
preferred stock, par value $0.01, in one or more series. Our Board of
Directors may issue at any time, and from time to time, shares of preferred
stock with such voting and other powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions, as are stated and expressed in the Board resolution providing
for the issuance. Therefore, without stockholder approval (except as
provided under the terms of the Series A Preferred Stock (see “Description of
Series A Preferred Stock”) or as may be required by the rules of The NASDAQ
Stock Market or any other exchange or market on which our securities may then be
listed or quoted), our Board of Directors can authorize the issuance of
preferred stock with voting, dividend, liquidation and conversion and other
rights that could dilute the voting power or other rights or adversely affect
the market value of the common stock and may assist management in impeding any
unfriendly takeover or attempted change in control. See
“—Anti-Takeover Effects – Authorized Shares.”
The
preferred stock has the terms described below unless otherwise provided in the
prospectus supplement relating to a particular series of the preferred stock or,
in the case of the Series A Preferred Stock, as described under “Description of
Series A Preferred Stock.” You should read the prospectus supplement relating to
the particular series of the preferred stock being offered for specific terms,
including:
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the
designation of the series of preferred stock and the number of shares
offered;
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the
amount of liquidation preference per share, if
any;
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the
price at which the preferred stock will be
issued;
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the
dividend rate, or method of calculation, the dates on which dividends will
be payable, whether dividends will be cumulative or noncumulative and, if
cumulative, the dates from which dividends will commence to
cumulate;
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any
listing of the preferred stock being offered on any securities exchange or
other securities market;
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any
redemption or sinking fund
provisions;
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any
conversion provisions;
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whether
interests in the preferred stock being offered will be represented by
depositary shares; and
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any
other specific terms of the preferred stock being
offered.
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Upon our
receipt of the full specified purchase price, the preferred stock will, when
issued, be fully paid and nonassessable. Unless otherwise specified in the
prospectus supplement, each series of preferred stock will rank equally as to
dividends and liquidation rights in all respects with each other series of
preferred stock. The rights of holders of shares of each series of preferred
stock will be subordinate to those of our general creditors.
Rank. Any series
of the preferred stock will, with respect to the priority of the payment of
dividends and the priority of payments upon our liquidation, winding up and
dissolution, rank:
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senior
to our common stock and all classes and series of other stock issued by us
the terms of which specifically provide that such other stock will rank
junior to the preferred stock (referred to as the “junior
securities”);
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equally
with all other classes and series of stock issued by us the terms of which
specifically provide that such stock will rank equally with the preferred
stock (referred to as the “parity securities”);
and
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junior
to all other classes and series of stock issued by us the terms of which
specifically provide that such stock will rank senior to the preferred
stock.
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Dividends. Holders
of the preferred stock of each series will be entitled to receive, when, as and
if declared by our Board of Directors, cash dividends at such rates and on such
dates described, if any, in the applicable prospectus supplement. Different
series of preferred stock may be entitled to dividends at different rates or
based on different methods of calculation. The dividend rate may be fixed or
variable or both. Dividends will be payable to the holders of record as they
appear on our stock books on record dates fixed by our Board of Directors, as
specified in the applicable prospectus supplement.
Dividends
on any series of the preferred stock may be cumulative or noncumulative, as
described in the applicable prospectus supplement. If our Board of Directors
does not declare a dividend payable on a dividend payment date on any series of
noncumulative preferred stock, then the holders of that noncumulative preferred
stock will have no right to receive a dividend for that dividend payment date,
and we will have no obligation to pay the dividend accrued for that period,
whether or not dividends on that series are declared payable on any future
dividend payment dates. Dividends on any series of cumulative preferred stock
will accrue from the date we initially issue shares of such series or such other
date specified in the applicable prospectus supplement.
No full
dividends may be declared or paid or funds set apart for the payment of any
dividends on any parity securities unless dividends have been paid or set apart
for payment on the preferred stock. If full dividends are not paid, the
preferred stock will share dividends pro rata with the parity securities. No
dividends may be declared or paid or funds set apart for the payment of
dividends on any junior securities unless full cumulative dividends for all
dividend periods terminating on or prior
to the
date of the declaration or payment will have been paid or declared and a sum
sufficient for the payment set apart for payment on the preferred
stock.
Rights Upon
Liquidation. If we dissolve, liquidate or wind up our affairs,
either voluntarily or involuntarily, the holders of each series of preferred
stock will be entitled to receive, before any payment or distribution of assets
is made to holders of junior securities, liquidating distributions in the amount
described in the applicable prospectus supplement relating to that series of the
preferred stock, plus an amount equal to accrued and unpaid dividends and, if
the series of the preferred stock is cumulative, for all dividend periods prior
to that point in time. If the amounts payable with respect to the preferred
stock of any series and any other parity securities are not paid in full, the
holders of the preferred stock of that series and of the parity securities will
share proportionately in the distribution of our assets in proportion to the
full liquidation preferences to which they are entitled. After the holders of
preferred stock and the parity securities are paid in full, they will have no
right or claim to any of our remaining assets.
Because
we are a holding company, our rights and the rights of our creditors and of our
stockholders, including the holders of any shares of preferred stock then
outstanding, to participate in the assets of any subsidiary upon the
subsidiary’s liquidation or recapitalization will be subject to the prior claims
of the subsidiary’s creditors except to the extent that we may ourselves be a
creditor with recognized claims against the subsidiary.
Redemption. We may
provide that a series of the preferred stock may be redeemable, in whole or in
part, at our option or at the option of the holder of the stock. In
addition, a series of preferred stock may be subject to mandatory redemption
pursuant to a sinking fund or otherwise. The redemption provisions that may
apply to a series of preferred stock, including the redemption dates and the
redemption prices for that series, will be described in the prospectus
supplement.
In the
event of partial redemptions of preferred stock, whether by mandatory or
optional redemption, our Board of Directors will determine the method for
selecting the shares to be redeemed, which may be by lot or pro rata or by any
other method determined by our Board of Directors to be equitable.
On or
after a redemption date, unless we default in the payment of the redemption
price, dividends will cease to accrue on shares of preferred stock called for
redemption. In addition, all rights of holders of the shares will terminate
except for the right to receive the redemption price.
Unless
otherwise specified in the applicable prospectus supplement for any series of
preferred stock, if any dividends on any other series of preferred stock ranking
equally as to payment of dividends and liquidation rights with such series of
preferred stock are in arrears, no shares of any such series of preferred stock
may be redeemed, whether by mandatory or optional redemption, unless all shares
of preferred stock are redeemed, and we will not purchase any shares of such
series of preferred stock. This requirement, however, will not prevent us from
acquiring such shares pursuant to a purchase or exchange offer made on the same
terms to holders of all such shares outstanding.
Voting
Rights. Unless otherwise described in the applicable
prospectus supplement, holders of the preferred stock will have no voting rights
except as otherwise required by law or in our charter.
Series
A Preferred Stock
For a
description of the terms of the Series A Preferred Stock, see “Description of
Series A Preferred Stock.”
Anti-takeover
Effects
The
provisions of our charter and bylaws summarized in the following paragraphs may
have anti-takeover effects and could delay, defer, or prevent a tender offer or
takeover attempt that a stockholder might consider to be in such stockholder’s
best interest, including those attempts that might result in a premium over the
market price for the shares held by stockholders, and may make removal of the
incumbent management and directors more difficult.
Authorized
Shares. Our charter currently authorizes the issuance of
50,000,000 shares of common stock and 1,000,000 shares of preferred
stock. Our charter authorizes our Board of Directors to classify or
reclassify any unissued shares of capital stock from time to time into one or
more classes or series of stock by
setting
or changing in one or more respects the preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends, qualifications or
terms and conditions of redemption of such shares. We are authorized
under our charter to issue additional shares of capital stock, up to the amount
authorized, generally without stockholder approval. In addition, our
charter provides by its terms that it may be amended by our Board of Directors,
without a stockholder vote, to change the number of shares of capital stock
authorized. The unissued shares of stock the Board is authorized to
issue provide our Board with as much flexibility as possible to effect
financings, acquisitions and other transactions. However, these
additional authorized shares may also be used by the Board of Directors,
consistent with its fiduciary duties, to deter future attempts to gain control
of us. The Board of Directors also has sole authority to determine
the terms of any one or more series of preferred or other stock, including
voting rights, conversion rates, and liquidation preferences. As a
result of the ability to fix voting rights for a series of preferred or other
stock, the Board has the power, to the extent consistent with its fiduciary
duties, to issue a series of preferred or other stock to persons friendly to the
incumbent management and directors in order to attempt to block a tender offer,
merger or other unsolicited transaction by which a third party seeks to acquire
control of us.
Voting
Limitation. Our charter generally prohibits any
stockholder that beneficially owns more than 14.9% of the outstanding shares of
our common stock from voting shares in excess of this limit. This
provision would limit the voting power of a beneficial owner of more than 14.9%
of the outstanding shares of our common stock in a proxy contest or on other
matters on which such person is entitled to vote.
The
Maryland General Corporation Law contains a control share acquisition statute
which, in general terms, provides that where a stockholder acquires issued and
outstanding shares of a corporation’s voting stock (referred to as control
shares) within one of several specified ranges (one-tenth or more but less than
one-third, one-third or more but less than a majority, or a majority or more),
approval by stockholders of the control share acquisition must be obtained
before the acquiring stockholder may vote the control shares. The required
stockholder vote is two-thirds of all votes entitled to be cast, excluding
“interested shares,” defined as shares held by the acquiring person, officers of
the corporation and employees who are also directors of the corporation. A
corporation may, however, opt-out of the control share statute through a charter
or bylaw provision, which we have done pursuant to our bylaws. Accordingly, the
Maryland control share acquisition statute does not apply to acquisitions of
shares of our common stock. Though not anticipated, we could decide to become
subject to the Maryland control share acquisition statute by amending our bylaws
to eliminate the opt-out provision. See “—Amendment of Charter and
Bylaws.”
Board of
Directors. Except with respect to any directors who may be
elected by the holders of any class or series of preferred or other stock, our
Board of Directors is divided into three classes, each of which contains
approximately one-third of the members of the Board. The members of
each class are elected for a term of three years, with the terms of office of
all members of one class expiring each year so that approximately one-third of
the total number of directors is elected each year. The
classification of directors, together with the provisions in our charter
described below that limit the ability of stockholders to remove directors and
that permit only the remaining directors to fill any vacancies on the Board of
Directors, have the effect of making it more difficult for stockholders to
change the composition of the Board of Directors. As a result, at least two
annual meetings of stockholders will be required for the stockholders to change
a majority of the directors, whether or not a change in the Board of Directors
would be beneficial and whether or not a majority of stockholders believe that
such a change would be desirable. Our charter provides that
stockholders may not cumulate their votes in the election of
directors.
Our
charter provides that we will have the number of directors fixed from time to
time by our Board of Directors by a vote of a majority of the
Board. MB Financial, Inc. currently has ten directors. Our
charter and bylaws provide that, subject to the rights of the holders of any
series of preferred or other stock then outstanding, vacancies in the Board of
Directors may be filled by a majority vote of the directors then in office,
though less than a quorum, and any director so chosen shall hold office for the
remainder of the full term of the class of directors in which the vacancy
occurred. Our charter further provides that, subject to the rights of
the holders of any series of preferred or other stock then outstanding,
directors may be removed from office only for cause and only by the vote of the
holders of at least 80% of the voting power of the outstanding shares of capital
stock entitled to vote generally in the election of directors, voting together
as a single class.
The
foregoing description of our Board of Directors does not apply with respect to
directors that may be elected by the holders of the Series A Preferred Stock in
the event we do not pay dividends on the Series A Preferred Stock for six or
more dividend periods. See “Description of Series A Preferred
Stock—Voting Rights.”
Special Meetings of
Stockholders. Our bylaws provide that special meetings of
stockholders may be called by our Board of Directors by vote of a majority of
the whole Board (meaning the total number of directors we would have if there
were no vacancies on the Board). Our bylaws also provide that a
special meeting of stockholders shall be called by on the written request of
stockholders entitled to cast at least a majority of all votes entitled to be
cast at the meeting.
Action by Stockholders Without A
Meeting. Our bylaws provide that, except as described in the
following sentence, any action required or permitted to be taken at a meeting of
stockholders may instead be taken without a meeting if a unanimous written
consent which sets forth the action is signed by each stockholder entitled to
vote on the matter. The bylaws also provide that, unless our charter provides
otherwise, the holders of any class of our stock, other than common stock, that
is entitled to vote generally in the election of directors may act by written
consent without a meeting if the consent is signed by the holders entitled to
cast the minimum number of votes that would be necessary to approve the action
at a meeting of stockholders.
Business Combinations With Certain
Persons. Our charter
provides that certain business combinations (for example, mergers, share
exchanges, significant asset sales and significant stock issuances) involving
“interested stockholders” of MB Financial, Inc. require, in addition to any vote
required by law, the approval of the holders of at least 80% of the voting power
of the outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class, unless either (i) a majority
of the disinterested directors have approved the business combination or
(ii) certain fair price and procedure requirements are satisfied. An
“interested stockholder” generally means a person who is a greater than 14.9%
stockholder of MB Financial, Inc. or who is an affiliate of MB Financial, Inc.
and at any time within the past two years was a greater than 14.9% stockholder
of MB Financial, Inc.
The
Maryland General Corporation Law contains a business combination statute that
prohibits a business combination between a corporation and an interested
stockholder (one who beneficially owns 10% or more of the voting power) for a
period of five years after the interested stockholder first becomes an
interested stockholder, unless the transaction has been approved by the board of
directors before the interested stockholder became an interested stockholder or
the corporation has exempted itself from the statute pursuant to a charter
provision. After the five-year period has elapsed, a corporation subject to the
statute may not consummate a business combination with an interested stockholder
unless (i) the transaction has been recommended by the board of directors
and (ii) the transaction has been approved by (a) 80% of the
outstanding shares entitled to be cast and (b) two-thirds of the votes
entitled to be cast other than shares owned by the interested stockholder. This
approval requirement need not be met if certain fair price and terms criteria
have been satisfied. We have opted-out of the Maryland business
combination statute through a provision in our charter.
Prevention of
Greenmail. Our charter generally prohibits us from acquiring
any of our own equity securities from a beneficial owner of 5% or more of our
voting stock unless: (i) the acquisition is approved by the holders of at
least 80% of our voting stock not owned by the seller, voting together as a
single class; (ii) the acquisition is made as part of a tender or exchange
offer by us or a subsidiary of ours to purchase securities of the same class on
the same terms to all holders of such securities; (iii) the acquisition is
pursuant to an open market purchase program approved by a majority of our Board
of Directors, including a majority of the disinterested directors; or
(iv) the acquisition is at or below the market price of our common stock
and is approved by a majority of our Board of Directors, including a majority of
the disinterested directors.
Amendment of Charter and
Bylaws. Our charter generally may be amended upon
approval by the Board of Directors and the holders of a majority of the
outstanding shares of our common stock. The amendment of certain
provisions of our charter, however, requires the vote of the holders of at least
80% of the outstanding shares of capital stock entitled to vote generally in the
election of directors, voting together as a single class. These include
provisions relating to: voting limitations on greater than 14.9% stockholders;
stockholder action by written consent; the calling of special stockholders’
meetings; the number, classification, election and removal of directors; certain
business combinations with greater than 14.9% stockholders; the prevention of
greenmail; indemnification of directors and officers; limitation on liability of
directors and officers; and amendments to the charter and bylaws. Our
charter provides by its terms that it may be amended by our Board
of
Directors,
without a stockholder vote, to change the number of shares of capital stock
authorized for issuance.
Our
bylaws may be amended either by the Board of Directors, by a vote of a majority
of the whole Board, or by our stockholders, by the vote of the holders of at
least 80% of the voting power of the outstanding shares of capital stock
entitled to vote generally in the election of directors, voting together as a
single class.
Advance Notice
Provisions. Our bylaws provide that we must receive
written notice of any stockholder proposal for business at an annual meeting of
stockholders not less than 90 days or more than 120 days before the
anniversary of the preceding year’s annual meeting. If the date of the current
year annual meeting is advanced by more than 20 days or delayed by more
than 60 days from the anniversary date of the preceding year’s annual
meeting, notice of the proposal must be received by MB Financial no earlier than
the close of business on the 120th day prior to the date of the annual meeting
and no later than the close of business on the later of the 90th day prior to
the annual meeting or the 10th day following the day on which notice of the
meeting is mailed or public disclosure of the meeting date is first made,
whichever occurs first.
Our
bylaws also provide that we must receive written notice of any stockholder
director nomination for a meeting of stockholders not less than 90 days or
more than 120 days before the date of the meeting. If, however, less than
100 days’ notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice of the nomination must be received by the
secretary no later than the tenth day following the day on which notice of the
meeting is mailed or public disclosure of the meeting date is first made,
whichever occurs first.
Transfer
Agent
The
transfer agent and registrar for our common stock is BNY Mellon Shareowner
Services.
DESCRIPTION
OF SERIES A PREFERRED STOCK
This
section summarizes specific terms and provisions of the Series A Preferred
Stock. The description of the Series A Preferred Stock contained in
this section is qualified in its entirety by the actual terms of the Series A
Preferred Stock, as are stated in the articles supplementary to our charter, a
copy of which was attached as Exhibit 3.1 to our Current Report on Form 8-K
filed on December 8, 2008 and incorporated by reference into this
prospectus. See “Where You Can Find More Information.”
General
The
Series A Preferred Stock constitutes a single series of our preferred stock,
consisting of 196,000 shares, par value $0.01 per share, having a liquidation
preference amount of $1,000 per share. The Series A Preferred Stock
has no maturity date. We issued the shares of Series A Preferred
Stock to Treasury on December 5, 2008 in connection with the TARP Capital
Purchase Program for a purchase price of $196.0 million. Pursuant to
the securities purchase agreement between us and Treasury, we have agreed, if
requested by Treasury, to enter into a depositary arrangement pursuant to which
the shares of Series A Preferred Stock may be deposited and depositary shares,
each representing a fraction of a share of Series A Preferred Stock as specified
by Treasury, may be issued. See “Description of Depositary
Shares—Series A Depositary Shares.”
Dividends
Rate. Dividends on the Series
A Preferred Stock are payable quarterly in arrears, when, as and if authorized
and declared by our Board of Directors out of legally available funds, on a
cumulative basis on the $1,000 per share liquidation preference amount plus the
amount of accrued and unpaid dividends for any prior dividend periods, at a rate
of (i) 5% per annum, from the original issuance date to but excluding the first
day of the first dividend period commencing after the fifth anniversary of the
original issuance date (i.e., 5% per annum from December 5, 2008 to but
excluding February 15, 2014), and (ii) 9% per annum, from and after the first
day of the first dividend period commencing after the fifth anniversary of the
original issuance date (i.e., 9% per annum on and after February 15,
2014). Dividends are payable quarterly in arrears on February
15, May 15, August 15 and November 15 of each year,
commencing on February 15, 2009.
Each
dividend will be payable to holders of record as they appear on our stock
register on the applicable record date, which will be the 15th calendar day
immediately preceding the related dividend payment date (whether or not a
business day), or such other record date determined by our Board of Directors
that is not more than 60 nor less than ten days prior to the related dividend
payment date. Each period from and including a dividend payment date
(or the date of the issuance of the Series A Preferred Stock) to but excluding
the following dividend payment date is referred to as a “dividend
period.” Dividends payable for each dividend period are computed on
the basis of a 360-day year consisting of twelve 30-day months. If a
scheduled dividend payment date falls on a day that is not a business day, the
dividend will be paid on the next business day as if it were paid on the
scheduled dividend payment date, and no interest or other additional amount will
accrue on the dividend.
Dividends
on the Series A Preferred Stock will be cumulative. If for any reason
our Board of Directors does not declare a dividend on the Series A Preferred
Stock for a particular dividend period, or if the Board of Directors declares
less than a full dividend, we will remain obligated to pay the unpaid portion of
the dividend for that period and the unpaid dividend will compound on each
subsequent dividend date (meaning that dividends for future dividend periods
will accrue on any unpaid dividend amounts for prior dividend
periods).
We are
not obligated to pay holders of the Series A Preferred Stock any dividend in
excess of the dividends on the Series A Preferred Stock that are payable as
described above. There is no sinking fund with respect to dividends
on the Series A Preferred Stock.
Priority of
Dividends. So long as the Series A Preferred Stock remains
outstanding, we may not declare or pay a dividend or other distribution on our
common stock or any other shares of Junior Stock (other than dividends payable
solely in common stock) or Parity Stock (other than dividends paid on a pro rata
basis with the Series A Preferred Stock), and we generally may not directly or
indirectly purchase, redeem or otherwise acquire any shares of common stock,
Junior Stock or Parity Stock unless all accrued and unpaid dividends on the
Series A Preferred Stock for all past dividend periods are paid in
full.
“Junior
Stock” means our common stock and any other class or series of our stock the
terms of which expressly provide that it ranks junior to the Series A Preferred
Stock as to dividend rights and/or as to rights on liquidation, dissolution or
winding up of MB Financial, Inc. We currently have no outstanding
class or series of stock constituting Junior Stock other than our common
stock.
“Parity
Stock” means any class or series of our stock, other than the Series A Preferred
Stock, the terms of which do not expressly provide that such class or series
will rank senior or junior to the Series A Preferred Stock as to dividend rights
and/or as to rights on liquidation, dissolution or winding up of MB Financial,
Inc., in each case without regard to whether dividends accrue cumulatively or
non-cumulatively. We currently have no outstanding class or series of
stock constituting Parity Stock.
Liquidation
Rights
In the
event of any voluntary or involuntary liquidation, dissolution or winding up of
our affairs, holders of the Series A Preferred Stock will be entitled to receive
for each share of Series A Preferred Stock, out of our assets or proceeds
available for distribution to our stockholders, subject to any rights of our
creditors, before any distribution of assets or proceeds is made to or set aside
for the holders of our common stock and any other class or series of our stock
ranking junior to the Series A Preferred Stock, payment of an amount equal to
the sum of (i) the $1,000 liquidation preference amount per share and (ii) the
amount of any accrued and unpaid dividends on the Series A Preferred Stock
(including dividends accrued on unpaid dividends). To the extent the
assets or proceeds available for distribution to stockholders are not sufficient
to fully pay the liquidation payments owing to the holders of the Series A
Preferred Stock and the holders of any other class or series of our stock
ranking equally with the Series A Preferred Stock, the holders of the Series A
Preferred Stock and such other stock will share ratably in the
distribution.
For
purposes of the liquidation rights of the Series A Preferred Stock, neither a
merger or consolidation of us with another entity nor a sale, lease or exchange
of all or substantially all of our assets will constitute a liquidation,
dissolution or winding up of our affairs.
Redemption
and Repurchases
Subject
to the prior approval of the Federal Reserve, the Series A Preferred Stock is
redeemable at our option in whole or in part at a redemption price equal to 100%
of the liquidation preference amount of $1,000 per share plus any accrued and
unpaid dividends (including dividends accrued on unpaid dividends) to but
excluding the date of redemption, provided that any declared but unpaid dividend
payable on a redemption date that occurs subsequent to the record date for the
dividend will be payable to the holder of record of the redeemed shares on the
dividend record date, and provided further that the Series A Preferred Stock may
be redeemed prior to the first dividend payment date falling after the third
anniversary of the original issuance date (i.e., prior to February 15, 2012)
only if (i) we have, or our successor following a business combination with
another entity which also participated in the TARP Capital Purchase Program has,
raised aggregate gross proceeds in one or more Qualified Equity Offerings of at
least the Minimum Amount and (ii) the aggregate redemption price of the Series A
Preferred Stock does not exceed the aggregate net proceeds from such Qualified
Equity Offerings by us and any successor. The “Minimum Amount” means
$49.0 million plus, in the event we are succeeded in a business combination by
another entity which also participated in the TARP Capital Purchase Program, 25%
of the aggregate liquidation preference amount of the preferred stock issued by
that entity to Treasury. A “Qualified Equity Offering” is defined as
the sale for cash by MB Financial, Inc. (or its successor) of preferred stock or
common stock that qualifies as Tier 1 capital under applicable regulatory
capital guidelines.
To
exercise the redemption right described above, we must give notice of the
redemption to the holders of record of the Series A Preferred Stock by first
class mail, not less than 30 days and not more than 60 days before the date of
redemption. Each notice of redemption given to a holder of Series A
Preferred Stock must state: (i) the redemption date; (ii) the number of shares
of Series A Preferred Stock to be redeemed and, if less than all the shares held
by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (iii) the redemption price; and (iv) the place or places where
certificates for such shares are to be surrendered for payment of the redemption
price. In the case of a partial redemption of the Series A Preferred
Stock, the shares to be redeemed will be selected either pro rata or in such
other manner as our Board of Directors determines to be fair and
equitable.
Shares of
Series A Preferred Stock that we redeem, repurchase or otherwise acquire will
revert to authorized but unissued shares of preferred stock, which may then be
reissued by us as any series of preferred stock other than the Series A
Preferred Stock.
No
Conversion Rights
Holders
of the Series A Preferred Stock have no right to exchange or convert their
shares into common stock or any other securities.
Voting
Rights
The
holders of the Series A Preferred Stock do not have voting rights other than
those described below, except to the extent specifically required by Maryland
law.
Whenever
dividends have not been paid on the Series A Preferred Stock for six or more
quarterly dividend periods, whether or not consecutive, the authorized number of
directors of MB Financial, Inc. will automatically increase by two and the
holders of the Series A Preferred Stock will have the right, with the holders of
shares of any other classes or series of Voting Parity Stock outstanding at the
time, voting together as a class, to elect two directors (the “Preferred
Directors”) to fill such newly created directorships at our next annual meeting
of stockholders (or at a special meeting called for that purpose prior to the
next annual meeting) and at each subsequent annual meeting of stockholders until
all accrued and unpaid dividends for all past dividend periods on all
outstanding shares of Series A Preferred
Stock
have been paid in full at which time this right will terminate with respect to
the Series A Preferred Stock, subject to revesting in the event of each and
every subsequent default by us in the payment of dividends on the Series A
Preferred Stock.
No person
may be elected as Preferred Director who would cause us to violate any corporate
governance requirements of the NASDAQ Stock Market or any other securities
exchange or other trading facility on which our securities may then be listed or
traded that listed or traded companies must have a majority of independent
directors. Upon any termination of the right of the holders of the Series A
Preferred Stock and Voting Parity Stock as a class to vote for directors as
described above, the Preferred Directors will cease to be qualified as
directors, the terms of office of all Preferred Directors then in office will
terminate immediately and the authorized number of directors will be reduced by
the number of Preferred Directors which had been elected by the holders of the
Series A Preferred Stock and the Voting Parity Stock. Any Preferred Director may
be removed at any time, with or without cause, and any vacancy created by such a
removal may be filled, only by the affirmative vote of the holders a majority of
the outstanding shares of Series A Preferred Stock voting separately as a class
together with the holders of shares of Voting Parity Stock, to the extent the
voting rights of such holders described above are then exercisable. If the
office of any Preferred Director becomes vacant for any reason other than
removal from office, the remaining Preferred Director may choose a successor who
will hold office for the unexpired term of the office in which the vacancy
occurred.
The term
“Voting Parity Stock” means with regard to any matter as to which the holders of
the Series A Preferred Stock are entitled to vote, any series of Parity Stock
(as defined under “—Dividends-Priority of Dividends”) upon which voting rights
similar to those of the Series A Preferred Stock have been conferred and are
exercisable with respect to such matter. We currently have no
outstanding shares of Voting Parity Stock.
In
addition to any other vote or consent required by Maryland law or by our
charter, the vote or consent of the holders of at least 66 2/3% of the
outstanding shares of Series A Preferred Stock, voting as a separate class, is
required in order to do the following:
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amend
our charter or the articles supplementary for the Series A Preferred Stock
to authorize or create or increase the authorized amount of, or any
issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of stock
ranking senior to the Series A Preferred Stock with respect to the payment
of dividends and/or the distribution of assets on any liquidation,
dissolution or winding up of MB Financial, Inc.;
or
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amend
our charter or the articles supplementary for the Series A Preferred Stock
in a way that materially and adversely affect the rights, preferences,
privileges or voting powers of the Series A Preferred Stock;
or
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consummate
a binding share exchange or reclassification involving the Series A
Preferred Stock or a merger or consolidation of MB Financial, Inc. with
another entity, unless (i) the shares of Series A Preferred Stock
remain outstanding or, in the case of a merger or consolidation in which
MB Financial, Inc. is not the surviving or resulting entity, are converted
into or exchanged for preference securities of the surviving or resulting
entity or its ultimate parent, and (ii) the shares of Series A
Preferred Stock remaining outstanding or such preference securities, have
such rights, preferences, privileges, voting powers, limitations and
restrictions, taken as a whole, as are not materially less favorable than
the rights, preferences, privileges, voting powers, limitations and
restrictions of the Series A Preferred Stock prior to consummation of the
transaction, taken as a whole;
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provided, however, that
(1) any increase in the amount of our authorized but unissued shares of
preferred stock, and (2) the creation and issuance, or an increase in the
authorized or issued amount, of any other series of preferred stock, or any
securities convertible into or exchangeable or exercisable for any other series
of preferred stock, ranking equally with and/or junior to the Series A Preferred
Stock with respect to the payment of dividends, whether such dividends are
cumulative or non-cumulative and the distribution of assets upon our
liquidation, dissolution or winding up, will not be deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of the
Series A Preferred Stock and will not require the vote or consent of the holders
of the Series A Preferred Stock.
To the
extent holders of the Series A Preferred Stock are entitled to vote, holders of
shares of the Series A Preferred Stock will be entitled to one vote for each
share then held.
The
voting provisions described above will not apply if, at or prior to the time
when the vote or consent of the holders of the Series A Preferred Stock would
otherwise be required, all outstanding shares of the Series A Preferred Stock
have been redeemed by us or called for redemption upon proper notice and
sufficient funds have been set aside by us for the benefit of the holders of
Series A Preferred Stock to effect the redemption.
DESCRIPTION
OF DEPOSITARY SHARES
We or the
selling securityholders may offer depositary shares, which will be evidenced by
depositary receipts, representing fractional interests in shares of preferred
stock of any series. In connection with the issuance of any depositary shares,
we will enter into a deposit agreement with a depositary, which will be named in
the applicable prospectus supplement. The following briefly summarizes the
anticipated material provisions of the deposit agreement and of the depositary
shares and depositary receipts, other than pricing and related terms disclosed
for a particular issuance in an accompanying prospectus supplement and except as
may be provided otherwise under the terms of any depositary arrangement entered
into for the Series A Preferred Stock. See “—Series A Depositary
Shares.” This description is subject to, and qualified in its
entirety by reference to, all provisions of the applicable deposit agreement,
depositary shares and depositary receipts. You should read the particular terms
of any depositary shares and any depositary receipts that we offer and any
deposit agreement relating to a particular series of preferred stock described
in more detail in a prospectus supplement. The prospectus supplement will also
state whether any of the generalized provisions summarized below do not apply to
the depositary shares or depositary receipts being offered.
General
We may,
at our option, elect to offer fractional shares of preferred stock, rather than
full shares of preferred stock. In such event, we will issue receipts for
depositary shares, each of which will represent a fraction of a share of a
particular series of preferred stock.
The
shares of any series of preferred stock represented by depositary shares will be
deposited under a deposit agreement between us and a bank or trust company or an
affiliate of a bank or trust company we select and that has its
principal office in the United States and a combined capital and surplus of at
least $50,000,000, as preferred stock depositary. Each owner of a depositary
share will be entitled to all the rights and preferences of the underlying
preferred stock, including any dividend, voting, redemption, conversion and
liquidation rights described in the particular prospectus supplement, in
proportion to the applicable fraction of a share of preferred stock represented
by such depositary share.
The
depositary shares will be evidenced by depositary receipts issued pursuant to
the deposit agreement. Depositary receipts will be distributed to those persons
purchasing the fractional shares of preferred stock in accordance with the terms
of the applicable prospectus supplement.
Dividends
and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited preferred stock to the record
holders of depositary shares relating to the preferred stock in proportion to
the number of depositary shares owned by the holders.
In the
case of a distribution other than in cash, the preferred stock depositary will
distribute any property received by it other than cash to the record holders of
depositary shares entitled to receive it. If the preferred stock depositary
determines that it is not feasible to make such a distribution, it may, with our
approval, sell the property and distribute the net proceeds from the sale to the
holders of the depositary shares.
The
amounts distributed in any such distribution, whether in cash or otherwise, will
be reduced by any amount required to be withheld by us or the preferred stock
depositary on account of taxes.
Redemption,
Conversion and Exchange of Preferred Stock
If a
series of preferred stock represented by depositary shares is to be redeemed,
the depositary shares will be redeemed from the proceeds received by the
preferred stock depositary resulting from the redemption, in whole or in part,
of that series of preferred stock. The depositary shares will be redeemed by the
preferred stock depositary at a price per depositary share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of preferred stock redeemed.
Whenever
we redeem shares of preferred stock held by the preferred stock depositary, the
preferred stock depositary will redeem as of the same date the number of
depositary shares representing shares of preferred stock redeemed. If fewer than
all the depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by the preferred stock depositary by lot or ratably or
by any other equitable method, in each case as we may determine.
If a
series of preferred stock represented by depositary shares is to be converted or
exchanged, the holder of depositary receipts representing the shares of
preferred stock being converted or exchanged will have the right or obligation
to convert or exchange the depositary shares evidenced by the depositary
receipts.
After the
redemption, conversion or exchange date, the depositary shares called for
redemption, conversion or exchange will no longer be outstanding. When the
depositary shares are no longer outstanding, all rights of the holders will end,
except the right to receive money, securities or other property payable upon
redemption, conversion or exchange.
Voting
Deposited Preferred Stock
Upon
receipt of notice of any meeting at which the holders of any series of deposited
preferred stock are entitled to vote, the preferred stock depositary will mail
the information contained in the notice of meeting to the record holders of the
depositary receipts evidencing the depositary shares relating to that series of
preferred stock. Each record holder of the depositary receipts on the record
date will be entitled to instruct the preferred stock depositary to vote the
amount of the preferred stock represented by the holder's depositary shares. The
preferred stock depositary will try, if practical, to vote the amount of such
series of preferred stock represented by such depositary shares in accordance
with such instructions.
We will
agree to take all reasonable actions that the preferred stock depositary
determines are necessary to enable the preferred stock depositary to vote as
instructed. The preferred stock depositary will abstain from voting shares of
any series of preferred stock held by it for which it does not receive specific
instructions from the holders of depositary shares representing those preferred
shares.
Amendment
and Termination of Deposit Agreement
The form
of depositary receipt evidencing the depositary shares and any provision of the
applicable deposit agreement may at any time be amended by agreement between us
and the preferred stock depositary. However, any amendment that materially and
adversely alters any existing right of the holders of depositary receipts will
not be effective unless the amendment has been approved by the holders of
depositary receipts representing at least a majority of the depositary shares
then outstanding. Every holder of an outstanding depositary receipt at the time
any such amendment becomes effective will be deemed, by continuing to hold the
depositary receipt, to consent and agree to the amendment and to be bound by the
applicable deposit agreement, as amended.
We may
direct the preferred stock depositary to terminate the applicable deposit
agreement at any time by mailing notice of termination to the record holders of
the depositary receipts then outstanding at least 30 days prior to the date
fixed for termination. Upon termination, the preferred stock depositary will
deliver to each holder of depositary receipts, upon surrender of those receipts,
such number of whole shares of the series of preferred stock represented by the
depositary shares together with cash in lieu of any fractional shares, to the
extent we have deposited cash for payment in lieu of fractional shares with the
preferred stock depositary. In addition, the deposit agreement will
automatically terminate if:
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all
of the shares of the preferred stock deposited with the preferred stock
depositary have been withdrawn, redeemed, converted or exchanged;
or
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there
has been a final distribution in respect of the deposited preferred stock
in connection with our liquidation, dissolution or winding
up.
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Charges
of Preferred Stock Depositary; Taxes and Other Governmental Charges
We will
pay all transfer and other taxes and governmental charges arising solely from
the existence of the depositary arrangements. We also will pay charges of the
preferred stock depositary in connection with the initial deposit of preferred
stock and any redemption of preferred stock. Holders of depositary receipts will
pay other transfer and other taxes and governmental charges and such other
charges, including a fee for the withdrawal of shares of preferred stock upon
surrender of depositary receipts, as are expressly provided in the deposit
agreement to be for their accounts.
Prospective
purchasers of depositary shares should be aware that special tax, accounting and
other issues may be applicable to instruments such as depositary
shares.
Resignation
and Removal of Depositary
The
preferred stock depositary may resign at any time by delivering to us notice of
its intent to do so, and we may at any time remove the preferred stock
depositary, any such resignation or removal to take effect upon the appointment
of a successor preferred stock depositary and its acceptance of such
appointment. The successor preferred stock depositary must be appointed within
90 days after delivery of the notice of resignation or removal and must be a
bank or trust company, or an affiliate of a bank or trust company, having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
Miscellaneous
The
preferred stock depositary will forward all reports and communications from us
which are delivered to the preferred stock depositary and which we are required
to furnish to the holders of the deposited preferred stock.
Neither
we nor the preferred stock depositary will be liable if we are or the preferred
stock depositary is prevented or delayed by law or any circumstances beyond our
or its control in performing our or its obligations under the applicable deposit
agreement. Our obligations and the obligations of the preferred stock depositary
under the applicable deposit agreement will be limited to performance in good
faith of the duties under the deposit agreement and we and the preferred stock
depositary will not be obligated to prosecute or defend any legal proceeding in
respect of any depositary shares, depositary receipts or shares of preferred
stock unless satisfactory indemnity is furnished. We and the preferred stock
depositary may rely upon written advice of counsel or accountants, or upon
information provided by holders of depositary receipts or other persons believed
to be competent and on documents believed to be genuine.
Series
A Depositary Shares
Pursuant
to the securities purchase agreement between us and Treasury, we have agreed, if
requested by Treasury, to enter into a depositary arrangement pursuant to which
the shares of Series A Preferred Stock may be deposited and depositary shares,
each representing a fraction of a share of Series A Preferred Stock as specified
by Treasury, may be issued (sometimes referred to in this prospectus as the
“Series A Depositary Shares”). The Shares of Series A Preferred Stock
would be held by a depositary reasonably acceptable to Treasury. The
fractional amount per share of Series A Preferred Stock and the specific terms
of the depositary arrangement would be described in a prospectus
supplement. The actual terms of any such depositary arrangement for
the Series A Preferred Stock would be set forth in a deposit agreement to which
we would be a party, which would be attached as an exhibit to a filing by us
that would be incorporated by reference into this
prospectus. See “Where You Can Find More
Information.”
We may
issue warrants for the purchase shares of common stock or preferred stock or
depositary shares. Warrants may be issued independently or together
with any shares of common stock or preferred stock or depositary shares offered
by any prospectus supplement and may be attached to or separate from the shares
of common stock or preferred stock or depositary shares. The warrants will be
issued under warrant agreements to be entered into between us and a bank or
trust company, as warrant agent, as is named in the prospectus supplement
relating to the particular issue of warrants. The warrant agent will act solely
as our agent in connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders of warrants or
beneficial owners of warrants.
The
following outlines the some of the anticipated general terms and conditions of
the warrants. Further terms of the warrants and the applicable
warrant agreement will be stated in the applicable prospectus supplement. The
following description and any description of the warrants in a prospectus
supplement is subject to and qualified in its entirety by reference to the terms
and provisions of the applicable warrant agreement.
While the
warrants covered by this prospectus include the warrant we issued to Treasury as
part of the TARP Capital Purchase Program, the description in this section is
not applicable to that warrant. For a description of the warrant we
issued to Treasury, see “Description of Treasury Warrant.”
General
If
warrants are offered, the prospectus supplement will describe the terms of the
warrants, including the following:
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the
number of shares purchasable upon exercise of any common stock warrants
and the price at which such shares of common stock may be purchased upon
such exercise;
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the
designation, number of shares and terms of the preferred stock purchasable
upon exercise of any preferred stock warrants and the price at which such
shares of preferred stock may be purchased upon such
exercise;
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if
applicable, the date on and after which the warrants and the related
common stock or preferred stock will be separately
transferable;
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the
date on which the right to exercise the warrants shall commence and the
date on which such right shall
expire;
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whether
the warrants will be issued in registered or bearer form;
and
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any
other terms of the warrants.
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If in
registered form, warrants may be presented for registration of transfer, and may
be exercised at the corporate trust office of the warrant agent or any other
office indicated in the prospectus supplement. Before the exercise of their
warrants, holders of warrants will not have any of the rights of holders of the
securities purchasable upon such exercise.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase such number of shares of common
stock or preferred stock or depositary shares at such exercise price as shall in
each case be set forth in, or can be calculated according to information
contained in, the prospectus supplement relating to the warrant. Warrants may be
exercised at such times as are set forth in the prospectus supplement relating
to such warrants. After the close of business on the expiration date of the
warrants,
or such
later date to which such expiration date may be extended by us, unexercised
warrants will become void.
Subject
to any restrictions and additional requirements that may be set forth in the
prospectus supplement, warrants may be exercised by delivery to the warrant
agent of the certificate evidencing such warrants properly completed and duly
executed and of payment as provided in the prospectus supplement of the amount
required to purchase the shares of common stock or preferred stock or depositary
shares purchasable upon such exercise. The exercise price will be the price
applicable on the date of payment in full, as set forth in the prospectus
supplement relating to the warrants. Upon receipt of such payment and the
certificate representing the warrants to be exercised, properly completed and
duly executed at the corporate trust office of the warrant agent or any other
office indicated in the prospectus supplement, we will, as soon as practicable,
issue and deliver the shares of common stock or preferred stock or depositary
shares purchasable upon such exercise. If fewer than all of the warrants
represented by such certificate are exercised, a new certificate will be issued
for the remaining amount of warrants.
Additional
Provisions
The
exercise price payable and the number of shares of common stock or preferred
stock purchasable upon the exercise of each warrant will be subject to
adjustment in certain events, including:
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the
issuance of the stock dividend to holders of common stock or preferred
stock, respectively;
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a
combination, subdivision or reclassification of common stock or preferred
stock, respectively; or
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any
other event described in the applicable prospectus
supplement.
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No
fractional shares will be issued upon exercise of warrants, but we will pay the
cash value of any fractional shares otherwise issuable. In case of
any consolidation, merger, or sale or conveyance of the property of MB
Financial, Inc. as an entirety or substantially as an entirety, the holder of
each outstanding warrant will have the right upon the exercise thereof to the
kind and amount of shares of stock and other securities and property, including
cash, receivable by a holder of the number of shares of common stock or
preferred stock into which such stock warrants were exercisable immediately
prior thereto.
DESCRIPTION
OF TREASURY WARRANT
This
section summarizes specific terms and provisions of the warrant we issued to
Treasury on December 5, 2008 concurrent with our sale to Treasury of 196,000
shares of Series A Preferred Stock pursuant to the TARP Capital Purchase Program
(the “Treasury Warrant”). The description of the Treasury Warrant contained in
this section is qualified in its entirety by the actual terms of the Treasury
Warrant, a copy of which was attached as Exhibit 4.1 to our Current Report on
Form 8-K filed on December 8, 2008 and incorporated by reference into this
prospectus. See “Where You Can Find More Information.”
General
The
Treasury Warrant gives the holder the right to initially purchase up to
1,012,048 shares of our common stock at an exercise price of $29.05 per
share. Subject to the limitations on exercise to which Treasury is
subject described under “—Transferability,” the Treasury Warrant is immediately
exercisable and expires on December 5, 2018. The exercise price may
be paid (i) by having us withhold from the shares of common stock that would
otherwise be issued to the Treasury Warrant holder upon exercise, a number of
shares of common stock having a market value equal to the aggregate exercise
price or (ii) if both we and the Treasury Warrant holder consent, in
cash.
Possible
Reduction in Number of Shares
If we (or
any successor to us by a business combination) complete one or more Qualified
Equity Offerings (as defined under “Description of Series A Preferred
Stock-Redemption and Repurchases”) prior to December 31, 2009 resulting in
aggregate gross proceeds of at least $196.0 million (plus the aggregate
liquidation preference amount of any preferred stock issued to Treasury by a
successor to us), the number of shares of common stock underlying the
Treasury
Warrant
then held by Treasury will be reduced by 50%. The number of shares
subject to the Treasury Warrant are subject to further adjustment as described
below under “—Other Adjustments.”
Transferability
The
Treasury Warrant is not subject to any restrictions on transfer; however,
Treasury may only transfer or exercise the Treasury Warrant with respect to
one-half of the shares underlying the Treasury Warrant prior to the earlier of
(i) the date on which we (or any successor to us by a business combination) have
received aggregate gross proceeds of at least $196.0 million (plus the aggregate
liquidation preference amount of any preferred stock issued to Treasury by a
successor to us) from one or more Qualified Equity Offerings (including those by
any successor to us by a business combination) and (ii) December 31,
2009.
Voting
of Treasury Warrant Shares
Treasury
has agreed that it will not vote any of the shares of common stock that it
acquires upon exercise of the Treasury Warrant. This does not apply
to any other person who acquires any portion of the Treasury Warrant, or the
shares of common stock underlying the Treasury Warrant, from
Treasury. Our charter provides, however, that any person who
beneficially owns shares of our common stock in excess of 14.9% of the
outstanding shares may not vote the excess shares. See “Description
of Capital Stock—Anti-Takeover Effects-Voting Limitation.”
Other
Adjustments
The
exercise price of the Treasury Warrant and the number of shares underlying the
Treasury Warrant automatically adjust upon the following events:
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any stock split, stock dividend,
subdivision, reclassification or combination of our common
stock;
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until the earlier of (i) the date
on which Treasury no longer holds any portion of the Treasury Warrant and
(ii) December 5, 2011, issuance of our common stock (or securities
convertible into our common stock) for consideration (or having a
conversion price per share) less than 90% of then
current market value, except for issuances in connection with benefit
plans, business
acquisitions and public or other broadly marketed
offerings;
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a
pro rata repurchase by us of our common stock;
or
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a determination by our Board of
Directors to make an adjustment to the anti-dilution provisions as
are reasonably
necessary, in the good faith opinion of the Board, to protect the purchase
rights of the Treasury Warrant holders.
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In
addition, if we declare any dividends or distributions on our common stock other
than our historical, ordinary cash dividends, dividends paid in our common stock
and other dividends or distributions covered by the first bullet point above,
the exercise price of the Treasury Warrant will be adjusted to reflect such
distribution.
In the
event of any merger, consolidation, or other business combination to which we
are a party, the right of the holder of the Treasury Warrant to receive shares
of our common stock upon exercise of the warrant will be converted into the
right to exercise the warrant to acquire the number of shares of stock or other
securities or property (including cash) which the common stock issuable upon
exercise of the warrant immediately prior to such business combination would
have been entitled to receive upon consummation of the business
combination. For purposes of the provision described in the preceding
sentence, if the holders of our common stock have the right to elect the amount
or type of consideration to be received by them in the business combination,
then the consideration that the holder of the Treasury Warrant will be entitled
to receive upon exercise will be the amount and type of consideration received
by a majority of the holders of the common stock who affirmatively make an
election.
No
Rights as Stockholders
The
warrant does not entitle its holder to any of the rights of a stockholder of MB
Financial, Inc. prior to exercise.
DESCRIPTION
OF PURCHASE CONTRACTS
We may
issue purchase contracts, including purchase contracts issued as part of a unit
with one or more other securities, for the purchase or sale of:
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preferred
stock, depositary shares or common
stock;
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securities
of an entity not affiliated with us, a basket of those securities, an
index or indices of those securities or any combination of the
foregoing;
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The price
price per share of our common stock, preferred stock or depositary shares, or
the price of the other securities, currencies or commodities that are the
subject of the contract, as applicable, may be fixed at the time the purchase
contracts are issued or may be determined by reference to a specific formula
contained in the purchase contracts. We may issue purchase contracts in such
amounts and in as many distinct series as we wish.
The
applicable prospectus supplement may contain, where applicable, the following
information about the purchase contracts issued under it:
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whether
the purchase contracts obligate the holder to purchase or sell, or both
purchase and sell, our common stock, preferred stock or depositary shares,
or other securities, currencies or commodities, as applicable, and the
nature and amount of each of those securities, or method of determining
those amounts;
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whether
the purchase contracts are to be prepaid or
not;
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whether
the purchase contracts are to be settled by delivery, or by reference or
linkage to the value, performance or level of our common stock or
preferred stock;
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any
acceleration, cancellation, termination or other provisions relating to
the settlement of the purchase
contracts;
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whether
the purchase contracts will be issued in fully registered or global
form.
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The
applicable prospectus supplement will describe the terms of any purchase
contracts. The preceding description and any description of purchase contracts
in the applicable prospectus supplement does not purport to be complete and is
subject to and is qualified in its entirety by reference to the purchase
contract agreement and, if applicable, collateral arrangements and depositary
arrangements relating to such purchase contracts.
DESCRIPTION
OF UNITS
Units
will consist of any combination of one or more of the other types of securities
described in this prospectus. The applicable prospectus supplement or
supplements will also describe:
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the
designation and the terms of the units and of any combination of the
securities constituting the units, including whether and under what
circumstances those securities may be held or traded
separately;
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any
additional terms of the agreement governing the
units;
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any
additional provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities constituting the units;
and
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whether
the units will be issued in fully registered
form.
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The terms
and conditions described under “Description of Warrants-General” and
“Description of Capital Stock” will apply to each unit that includes such
securities and to the securities included in each unit, unless otherwise
specified in the applicable prospectus supplement.
We will
issue the units under one or more unit agreements to be entered into between us
and a unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement.
SELLING
SECURITYHOLDERS
On
December 5, 2008, pursuant to the TARP Capital Purchase Program, we sold to
Treasury 196,000 shares of our Series A Preferred Stock, for an aggregate
purchase price of $196.0 million, and concurrently issued to Treasury the
Treasury Warrant, a ten-year warrant to purchase up to 1,012,048 shares of our
common stock at an exercise price of $29.05 per share, subject to adjustment as
described under “Description of Treasury Warrant.” The issuance of
the Series A Preferred Stock and the Treasury Warrant were completed in a
private placement to Treasury exempt from the registration requirements of the
Securities Act of 1933.
We were
required under the terms of the related securities purchase agreement between us
and Treasury to register for resale the shares of the Series A Preferred Stock,
the Treasury Warrant and the shares of our common stock underlying the Treasury
Warrant (sometimes referred to in this prospectus as the “Treasury Warrant
Shares”). This required registration includes depositary shares,
representing fractional interests in the Series A Preferred Stock (sometimes
referred to in this prospectus as the “Series A Depositary Shares”), in the
event Treasury requests that we deposit the Series A Preferred Stock held by
Treasury with a depositary under a depositary arrangement entered into in
accordance with the securities purchase agreement. The shares of our
preferred stock, depositary shares, warrants and shares of our common stock
covered by this prospectus include the Series A Preferred Stock or any Series A
Depositary Shares, the Treasury Warrant and the Treasury Warrant Shares, which
may be resold pursuant to this prospectus by Treasury or any person to which
Treasury has transferred its registration rights in accordance with the
securities purchase agreement between us and Treasury (a “Treasury
Transferee”). The Series A Preferred Stock, Series A Depositary
Shares, Treasury Warrant and Treasury Warrant Shares are collectively referred
to below as the “TARP Securities.”
The
selling securityholders may include (i) with respect to the TARP Securities,
Treasury and any Treasury Transferee holding TARP Securities and (ii) with
respect to any other securities covered by this prospectus, such other persons
as we may identify in the future as selling securityholders in the applicable
prospectus supplement. Treasury is required to notify us in writing
of any transfer of its registration rights within ten days after the transfer,
including the name and address of the Treasury Transferee(s) and the number and
type of securities with respect to which the registration rights have been
assigned. As of the date of this prospectus, Treasury has not
notified us of any such transfer. We therefore believe that Treasury
currently holds record and beneficial ownership of 100% of the outstanding
shares of Series A Preferred Stock and the entire amount of the Treasury Warrant
(none of which has been exercised).
|
·
|
196,000
shares of Series A Preferred Stock, representing 100% of the shares of
Series A Preferred Stock outstanding on the date of this prospectus, or,
in the event Treasury requests that we deposit the shares of Series A
Preferred Stock with a depositary in accordance with the securities
purchase agreement between us and Treasury, Series A Depositary Shares
evidencing fractional share interests in such shares of Series A Preferred
Stock;
|
|
·
|
the
Treasury Warrant, constituting a ten-year warrant to purchase 1,012,048
shares of our common stock at an exercise price of $29.05 per share,
subject to adjustment as described under “Description of Treasury
Warrant”; and
|
|
·
|
the
1,012,048 shares of our common stock issuable upon exercise of the
Treasury Warrant (subject to adjustment as noted in the immediately
preceding bullet point), which shares, if issued, would represent
ownership of approximately 2.9% of our common stock outstanding as of
December 12, 2008.
|
For
purposes of this prospectus, we have assumed that, after completion of a resale
offering of TARP Securities covered by this prospectus, none of the TARP
Securities will be held by Treasury or any Treasury Transferee.
We do not
know when or in what amounts the selling securityholders may offer the
securities covered by this prospectus for sale. The selling
securityholders might not sell any of the securities covered by this prospectus.
Because, to our knowledge, no sale of any of the securities covered by this
prospectus is currently subject to any agreements, arrangements or
understandings with a selling securityholder, we cannot estimate the number of
the securities that will be held by the selling securityholders after completion
of any resale offering utilizing this prospectus.
The only
potential selling securityholder whose identity we are currently aware of is
Treasury. Other than with respect to Treasury’s acquisition of the
Series A Preferred Stock and the Treasury Warrant from us, Treasury has not had
a material relationship with us.
Information
about the selling securityholders may change over time and changed information
will be set forth in supplements to this prospectus if and when
necessary.
We may
sell the securities being offered by this prospectus and the applicable
prospectus supplement:
|
·
|
to
the public through underwriters;
|
|
·
|
directly
to purchasers.
|
The
distribution of the securities may be effected from time to time in one or more
transactions:
|
·
|
at
a fixed price, or prices, which may be changed from time to
time;
|
|
·
|
at
market prices prevailing at the time of
sale;
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|
·
|
at
prices related to such prevailing market prices;
or
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The
applicable prospectus supplement will describe the method of distribution of the
securities and any applicable restrictions, as well as the terms of the
offering, including the following:
|
·
|
the
name of the agent or the name or names of any
underwriters;
|
|
·
|
the
public offering or purchase price;
|
|
·
|
any
discounts and commissions to be allowed or paid to the agent or
underwriters;
|
|
·
|
all
other items constituting underwriting
compensation;
|
|
·
|
any
discounts and commissions to be allowed or paid to dealers;
and
|
|
·
|
any
exchanges on which the securities will be
listed.
|
Only the
agents or underwriters named in the prospectus supplement are agents or
underwriters in connection with the securities being offered.
Under
agreements that we may enter into, underwriters, dealers or agents who
participate in the distribution of securities by use of this prospectus and the
applicable prospectus supplement may be entitled to indemnification from us
against some types of liabilities, including liabilities under the Securities
Act of 1933, or to contribution from us with respect to payments which they may
be required to make with respect to such liabilities, as well as reimbursement
for some types of expenses. Agents and underwriters may be customers
of, engage in transactions with, or perform services for us in the ordinary
course of business.
Underwriters,
dealers or agents participating in a distribution of securities by use of this
prospectus and the applicable prospectus supplement may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the offered securities, whether received from us
or from purchasers of offered securities for whom they act as agent, may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933.
We
may use this prospectus to solicit offers to purchase securities directly.
Except as set forth in the applicable prospectus supplement, none of our
directors, officers, or employees nor those of our bank subsidiary will solicit
or receive a commission in connection with these direct sales. Those persons may
respond to inquiries by potential purchasers and perform ministerial and
clerical work in connection with direct sales.
We may also enter into derivative transactions with
third parties, or sell securities not covered by this prospectus to third
parties in privately negotiated
transactions. In connection with such a transaction, the third parties may sell
securities covered by and pursuant to this prospectus and an applicable
prospectus supplement, including short sale transactions. In that
event, the third party may use securities borrowed
from us or others to settle such sales and may use securities received from us
to close out any related short positions. We may also loan or pledge securities
covered by this prospectus to third parties, who may sell the loaned securities
or, in
an event of default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and the applicable prospectus supplement.
In connection with an offering of securities,
underwriters may purchase and sell the securities covered by this prospectus in the open market. These
transactions may include over-allotment and stabilizing transactions and
purchases to cover short positions created by underwriters with respect to the
offering. Stabilizing transactions consist of certain bids or purchases for
preventing or retarding a decline in the market price of the securities; short
positions created by underwriters involve the sale by underwriters of a greater
number of securities than they are required to purchase from us in the
offering. Underwriters also may impose a penalty bid, by which
selling concessions allowed to broker-dealers in respect of the securities sold
in the offering may be reclaimed by underwriters if such securities are
repurchased by underwriters in stabilizing or covering
transactions. These activities may stabilize, maintain, or otherwise affect the
market price of the securities, which may be higher than the price that might
otherwise prevail in the open market; these activities, if commenced, may be
discontinued without notice at any time.
The securities covered by this prospectus may also be
sold from time to time by our securityholders. The selling securityholders and
their successors, including their transferees, may sell their securities
directly to purchasers or through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions, or commissions
from the selling securityholders or the purchasers of the securities. In the
case of sales by selling securityholders, we will not receive any of the
proceeds from the sale by them of the securities. Unless otherwise described in
an applicable prospectus supplement, the description herein of sales by us
regarding underwriters, dealers and agents will apply similarly to sales by
selling securityholders through underwriters, dealers and agents. We will name
the underwriters, dealers or agents acting for the selling securityholders in a
prospectus supplement and provide the principal terms of the agreement between
the selling securityholders and the underwriters, dealers or agents.
In
addition, any securities that qualify for sale pursuant to Rule 144 under
the Securities Act of 1933 may be sold by selling securityholders under
Rule 144 rather than pursuant to this prospectus.
In order
to comply with the securities laws of some states, if applicable, the securities
may be sold in those jurisdictions only through registered or licensed brokers
or dealers. In offering the securities covered by this prospectus, the selling
securityholders and any underwriters, broker-dealers or agents that participate
in the sale of those securities may be “underwriters” within the meaning of
Section 2(a)(11) of the Securities Act of 1933. Any discounts, commissions,
concessions or profit they earn on any resale of the shares may be underwriting
discounts or commissions under the Securities Act of 1933. Any selling
securityholder who is an “underwriter” within the meaning of
Section 2(a)(11) of the Securities Act of 1933 will be subject to the
prospectus delivery requirements of the Securities Act of 1933. The selling
securityholders will be obligated to comply with the provisions of the Exchange
Act and its rules relating to stock manipulation, particularly Regulation
M.
Pursuant
to the securities purchase agreement between us and Treasury, we will pay
substantially all expenses of the registration of the TARP Securities covered by
this prospectus, including, without limitation, SEC filing fees and expenses of
compliance with state securities or “blue sky” laws; provided, however, that a
selling
securityholder with respect to such securities will pay all underwriting
discounts and selling commissions, if any. We will indemnify the selling
securityholders with respect to the TARP Securities against liabilities,
including some liabilities under the Securities Act of 1933, in accordance with
the securities purchase agreement between us and Treasury, or such selling
securityholders will be entitled to contribution. We may enter into
similar indemnification arrangements with selling securityholders with respect
to securities other than the TARP Securities. We have agreed under
the securities purchase agreement between us and Treasury to cause such of our
directors and senior executive officers to execute customary lock-up agreements
in such form and for such time period up to 90 days as may be requested by a
managing underwriter with respect to an underwritten offering of TARP Securities
covered by this prospectus. We may enter into similar lock-up
arrangements with respect to securities other than the TARP Securities, whether
in connection with an offering by us or by selling
securityholders.
We do not
intend to apply for listing of the Series A Preferred Stock on any securities
exchange or for inclusion of the Series A Preferred Stock in any automated
quotation system unless requested by Treasury. No assurance can be
given as to the liquidity of the trading market, if any, for the Series A
Preferred Stock.
EXPERTS
Our
consolidated financial statements as of December 31, 2007 and 2006, and for
each of the years in the three-year period ended December 31, 2007, and
management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2007 have been incorporated by reference herein in
reliance upon the reports of McGladrey & Pullen LLP, independent registered
public accounting firm, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
PART
II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses to be incurred by MB Financial,
Inc. in connection with the sale and distribution of the securities being
registered hereby, other than underwriting discounts and
commissions.
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|
|
|
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Filing Fee —
Securities and Exchange Commission
|
|
(2)
|
|
Accounting fees and
expenses
|
|
(2) |
|
Legal fees and
expenses
|
|
(2)
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|
Depositaries fees
and expenses
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|
(2) |
|
Printing and
engraving expenses
|
|
(2)
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|
Blue Sky fees and
expenses
|
|
(2)
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|
Listing fees and
expenses
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|
(2)
|
|
Miscellaneous
expenses
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(2)
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|
|
|
(2)
|
|
Total
expenses
|
|
(2) |
___________________________
|
(1)
|
|
The
registrant is registering an indeterminate amount of securities under this
Registration Statement and in accordance with Rules 456(b) and
457(r), the registrant is deferring payment of any additional registration
fee until the time the securities are sold under this Registration
Statement pursuant to a prospectus supplement.
|
| (2) |
|
The aggregate amount of these expenses will be
reflected in the applicable
prospectus supplement.
|
Item
15. Indemnification of Directors and
Officers.
Section
2-405.2 of the Maryland General Corporation Law permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors
and officers to the corporation and its stockholders for monetary damages
except: (1) to the extent it is proven that the director or officer
actually received an improper benefit or profit, for the amount of the improper
benefit or profit; or (2) to the extent a final judgment or adjudication against
the director or officer is based on a determination that the director's or
officer’s act or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action against the director or
officer. The registrant’s charter contains such a provision, thereby
limiting the liability of its directors and officers to the maximum extent
permitted by Maryland law.
Section
2-418 of the Maryland General Corporation Law permits a Maryland corporation to
indemnify a director or officer who is made a party to any proceeding by reason
of service in that capacity against judgments, penalties, fines, settlements and
reasonable expenses actually incurred unless it is proven that: (1) the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and was committed in bad faith or with active and deliberate
dishonesty; (2) the director or officer actually received an improper personal
benefit; or (3) in the case of a criminal proceeding, the director or officer
had reason to believe that his conduct was unlawful. The Maryland
General Corporation Law provides that where a director or officer is a defendant
in a proceeding by or in the right of the corporation, the director or officer
may not be indemnified if he or she is found liable to the
corporation. The Maryland General Corporation Law also provides that
a director or officer may not be indemnified in respect of any proceeding
alleging improper personal benefit in which he or she was found liable on the
grounds that personal benefit was improperly received. A director or
officer found liable in a proceeding by or in the right of the corporation or in
a proceeding alleging improper personal benefit may petition a court to
nevertheless order indemnification for expenses if the court determines that the
director or officer is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances.
Section
2-418 of the Maryland General Corporation Law provides that unless limited by
the charter of a Maryland corporation, a director or officer who is successful
on the merits or otherwise in defense of any proceeding must be indemnified
against reasonable expenses. Section 2-418 also provides that a
Maryland corporation may advance reasonable expenses to a director or officer
upon the corporation's receipt of (a) a written affirmation by the director or
officer of his or her good faith belief that he or she has met the standard of
conduct necessary for indemnification by the corporation and (b) a written
undertaking by the director or officer or on his or her behalf to repay the
amount paid or reimbursed by the corporation if it is ultimately determined that
the standard of conduct was not met.
The
registrant's charter provides for indemnification of directors and officers to
the maximum extent permitted by the Maryland General Corporation
Law.
Under a
directors’ and officers’ liability insurance policy, directors and officers of
the registrant are insured against certain liabilities.
Item
16. Exhibits.
LIST
OF EXHIBITS
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|
|
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1.1**
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Form
of Underwriting Agreement.
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|
3.1
|
|
Charter
of the registrant (filed as Exhibit 3.1 to the registrant’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 2007 (File No.
000-24566-01) and incorporated herein by reference).
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|
3.2
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|
Articles
of amendment to the charter of the registrant (filed as Exhibit 3.2 to the
registrant’s Current Report on Form 8-K filed on December 8, 2008 (File
No. 000-24566-01) and incorporated herein by reference).
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|
3.3
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Articles
supplementary to the registrant’s charter containing the terms of the
registrant’s Fixed Rate Cumulative Perpetual Preferred Stock, Series A
(filed as Exhibit 3.2 to the registrant’s Current Report on Form 8-K filed
on December 8, 2008 (File No. 000-24566-01) and incorporated herein by
reference).
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|
3.4
|
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Bylaws
of the registrant (filed as Exhibit 3.1 to the registrant’s Current Report
on Form 8-K filed on December 11, 2007 (File No. 000-24566-01) and
incorporated herein by reference).
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4.1
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Warrant
dated December 5, 2008 issued by the registrant to the United States
Department of the Treasury (the “Treasury Warrant”) (filed as Exhibit 3.2
to the registrant’s Current Report on Form 8-K filed on December 8, 2008
(File No. 000-24566-01) and incorporated herein by
reference).
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4.2
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Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the registrant and the United
States Department of the Treasury (filed as Exhibit 10.1 to the
registrant’s Current Report on Form 8-K filed on December 8, 2008 (File
No. 000-24566-01) and incorporated herein by reference).
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4.3**
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Form
of Deposit Agreement, including form of Depositary Receipt.
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4.4**
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Form
of Warrant Agreement, including form of Warrant Certificate (for warrants
other than the Treasury Warrant).
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4.5**
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Form
of Purchase Contract.
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4.6**
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Form
of Unit Agreement (including certificate).
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23.1*
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Consent
of Silver, Freedman & Taff, L.L.P. (included in Exhibit
5).
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24*
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Power
of Attorney (included on the signature page of this Registration
Statement).
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____________________________
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*
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Filed
herewith.
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**
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To
be filed by post-effective amendment or under a Current Report on
Form 8-K and incorporated by reference
herein.
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Item
17. Undertakings.
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; and
(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 (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of an
undersigned registrant pursuant to this registration statement, regardless of
the
underwriting
method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of an undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(6) 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 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Chicago, State of Illinois, on the 19th day of December, 2008.
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MB
FINANCIAL, INC.
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By:
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/s/
Mitchell Feiger
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Name:
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Mitchell
Feiger
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Title:
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President
and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Mitchell Feiger and Jill E. York and each of them, as
true and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities to sign this Registration Statement on Form S-3 and any
and all amendments thereof (including post-effective amendments), and to file
the same, with the exhibits thereto, and other documents in connection herewith,
including any related registration statement filed pursuant to Rule 462(b)
of the Securities Act of 1933, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing required and
necessary to be done in and about the foregoing as fully for all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Mitchell Feiger
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Mitchell
Feiger
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President,
Chief Executive Officer and
Director
(Principal Executive Officer)
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December
18, 2008
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/s/
Jill E. York
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Jill
E. York
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Vice
President and Chief Financial Officer
(Principal
Financial Officer and Principal
Accounting
Officer)
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December
18, 2008
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/s/
David P. Bolger
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David
P. Bolger
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Director
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December
19, 2008
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/s/
Robert S. Engelman, Jr
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Robert
S. Engelman, Jr.
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Director
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December
19, 2008
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/s/
Charles Gries
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Charles
Gries
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Director
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December
19, 2008
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/s/
James N. Hallene
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James
N. Hallene
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Director
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December
19, 2008
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/s/
Thomas H. Harvey
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Thomas
H. Harvey
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Director
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December
18, 2008
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/s/
Patrick Henry
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Patrick
Henry
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Director
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December
18, 2008
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/s/
Richard J. Holmstrom
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Richard
J. Holmstrom
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Director
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December
18, 2008
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/s/
Karen J. May
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Karen
J. May
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Director
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December
18, 2008
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/s/
Ronald D. Santo
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Ronald
D. Santo
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Director
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December
19, 2008
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EXHIBIT INDEX
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1.1**
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Form
of Underwriting Agreement.
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3.1
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Charter
of the registrant (filed as Exhibit 3.1 to the registrant’s Quarterly
Report on Form 10-Q for the quarter ended March 31, 2007 (File No.
000-24566-01) and incorporated herein by reference).
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3.2
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Articles
of amendment to the charter of the registrant (filed as Exhibit 3.2 to the
registrant’s Current Report on Form 8-K filed on December 8, 2008 (File
No. 000-24566-01) and incorporated herein by reference).
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3.3
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Articles
supplementary to the registrant’s charter containing the terms of the
registrant’s Fixed Rate Cumulative Perpetual Preferred Stock, Series A
(filed as Exhibit 3.2 to the registrant’s Current Report on Form 8-K filed
on December 8, 2008 (File No. 000-24566-01) and incorporated herein by
reference).
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3.4
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Bylaws
of the registrant (filed as Exhibit 3.1 to the registrant’s Current Report
on Form 8-K filed on December 11, 2007 (File No. 000-24566-01) and
incorporated herein by reference).
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4.1
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Warrant
dated December 5, 2008 issued by the registrant to the United States
Department of the Treasury (the “Treasury Warrant”) (filed as Exhibit 3.2
to the registrant’s Current Report on Form 8-K filed on December 8, 2008
(File No. 000-24566-01) and incorporated herein by
reference).
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4.2
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Letter
Agreement (including Securities Purchase Agreement Standard Terms attached
as Exhibit A) dated December 5, 2008 between the registrant and the United
States Department of the Treasury (filed as Exhibit 10.1 to the
registrant’s Current Report on Form 8-K filed on December 8, 2008 (File
No. 000-24566-01) and incorporated herein by reference).
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4.3**
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Form
of Deposit Agreement, including form of Depositary Receipt.
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4.4**
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Form
of Warrant Agreement, including form of Warrant Certificate (for warrants
other than the Treasury Warrant).
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4.5**
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Form
of Purchase Contract.
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4.6**
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Form
of Unit Agreement (including certificate).
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23.1*
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Consent
of Silver, Freedman & Taff, L.L.P. (included in Exhibit
5).
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24*
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Power
of Attorney (included on the signature page of this Registration
Statement).
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____________________________
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*
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Filed
herewith.
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**
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To
be filed by post-effective amendment or under a Current Report on
Form 8-K and incorporated by reference
herein.
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