As
filed with the Securities and Exchange Commission on February 20,
2009
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
Registration
Statement
Under
The
Securities Act of 1933
 |
||
|
1st
Source Corporation
|
||
|
(Exact
name of registrant as specified in its charter)
|
||
|
Indiana
|
||
|
(State
or other jurisdiction of incorporation)
(Primary
Standard Industrial
Classification
Code Number)
|
||
|
35-1068133
|
||
|
(I.R.S.
Employer Identification No.)
|
||
|
100
North Michigan Street, South Bend, Indiana 46601 (574)
235-2000
|
||
|
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
|
||
John
B. Griffith, Esquire
General
Counsel
1st
Source Corporation
100
North Michigan Street
South
Bend, Indiana 46601
(574)
235-2000
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
With
copies to:
|
Thomas
M. Maxwell, Esquire
Barnes
& Thornburg LLP
11
South Meridian Street
Indianapolis,
Indiana 46204
(317)
231-7796
|
Approximate date of commencement of
proposed sale to the public: As soon as
practicable following 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: r
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. r
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. r
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: r
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: r
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.
|
Large
accelerated filer
|
r
|
Accelerated
filer
|
x
|
|
|
Non-accelerated
filer
|
r
|
Smaller
reporting company
|
r
|
|
|
(Do
not check if a smaller reporting company)
|
||||
CALCULATION
OF REGISTRATION FEE
|
Title
of each class
of
securities
to
be registered
|
Amount
to
be
registered (1)
|
Proposed
maximum
offering
price
per share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
Registration
Fee
|
|||||
|
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, without par
value
|
111,000
shares
|
$1,000
|
(1)
|
$111,000,000
|
(1)
|
$4,362
|
|||
|
Warrant
to Purchase Common Stock, without par value (2)
|
837,947
shares
|
--
|
(3)
|
--
|
(3)
|
--
|
(3)
|
||
|
Common
Stock, without par value
|
837,947
shares
|
$19.87
|
(4)
|
$16,650,007
|
$655
|
||||
|
Total:
|
$127,650,007
|
$5,017
|
|
(1)
|
Calculated
in accordance with Rule 457 and includes such additional number of shares
of Fixed Rate Cumulative Perpetual Preferred, Series A, of a currently
indeterminable amount, as may from time to time become issuable by reason
of stock splits, stock dividends or similar
transactions.
|
|
(2)
|
This
Registration Statement covers (a) a warrant for the purchase of 837,947
shares of common stock with an initial per share exercise price of $19.87
per share, (b) the 837,947 shares of common stock issuable upon exercise
of such warrant and (c) such additional number of shares of common stock,
of a currently indeterminable amount, as may from time to time become
issuable by reason of stock splits, stock dividends and certain
anti-dilution provisions set forth in such warrant, which shares of common
stock are registered hereunder pursuant to Rule
416.
|
|
(3)
|
Pursuant
to Rule 457(g), no separate registration fee is required with respect to
the warrant as it is being registered in the same registration statement
as the common stock offered pursuant thereto.
|
|
(4)
|
Calculated
in accordance with Rule 457(g) based upon the per share exercise price of
the warrant of $19.87.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
|
The
information in this prospectus is not complete and may be changed. The
securities described in this prospectus cannot be sold until the
registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and
it is not soliciting an offer to buy these securities in any state where
the offer or sale is not
permitted.
|
PROSPECTUS
Subject
to Completion, Dated February 20, 2009
|
|
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, without par
value
Warrant
to Purchase 837,947 Share of Common Stock, without par value
837,947
Shares of Common Stock, without par value
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of our fixed rate cumulative perpetual preferred
stock, series A, without par value, referred to as the series A preferred stock,
some or all of a warrant to purchase 837,947 shares of common stock, referred to
as the warrant, and any shares of common stock issuable from time to time upon
exercise of the warrant. In addition, this prospectus covers the issuance by us
of common stock upon the exercise of the warrant by the holders other than the
initial selling securityholder. In this prospectus, we refer to the shares of
series A preferred stock, the warrant and the shares of common stock issuable
upon exercise of the warrant, collectively, as the securities. We originally
issued the series A preferred stock and the warrant pursuant to the Letter
Agreement, dated January 23, 2009, and the related Securities Purchase Agreement
- Standard Terms, between us and the United States Department of the Treasury,
which we refer to as the Treasury or the initial selling securityholder, as part
of the Treasury’s Troubled Asset Relief Program Capital Purchase Program, in a
transaction exempt from the registration requirements of the Securities Act of
1933, as amended, referred to as the Securities Act.
The initial
selling securityholder and its successors, including transferees, which we
collectively refer to as the selling securityholders, may offer the securities
from time to time directly or through underwriters, broker-dealers or agents and
in one or more public or private transactions and at fixed prices, prevailing
market prices, at prices related to prevailing market prices or at negotiated
prices. If these securities are sold through underwriters, broker-dealers or
agents, the selling securityholders will be responsible for underwriting
discounts or commissions or agents’ commissions.
We will not
receive any proceeds from the sale of securities by the selling securityholders.
If the warrant is exercised in full for cash, we will receive proceeds of
approximately $16,650,000.
Neither the
series A preferred stock nor the warrant is listed on an exchange, and, unless
requested by the initial selling securityholder, we do not intend to list the
series A preferred stock or the warrant on any exchange.
Our common
stock trades on the Nasdaq Global Select Market under the symbol “SRCE.” On
February 19, 2009, the closing price of our common stock on the Nasdaq Global
Select Market was $17.57 per share. You are urged to obtain current market
quotations of the common stock.
This
investment involves risks. See “Risk Factors” on page 4.
Neither the
Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal
offense.
The date
of this prospectus
is .
TABLE
OF CONTENTS
|
1
|
|
|
1
|
|
|
3
|
|
|
4
|
|
|
4
|
|
|
4
|
|
|
4
|
|
|
4
|
|
|
10
|
|
|
11
|
|
|
12
|
|
|
14
|
|
|
14
|
|
|
14
|
|
|
15
|
|
|
15
|
i
This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission, referred to as the SEC, using a “shelf” registration, or
continuous offering, process. Under this shelf registration process, the selling
securityholders may, from time to time, offer and sell, in one or more
offerings, the securities described in this prospectus. In addition, this
prospectus covers our issuance of common stock upon the exercise of the warrant
by the holders other than the initial selling securityholder.
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the selling securityholders. The prospectus
supplement may add, update or change information in this prospectus. If the
information in this prospectus is inconsistent with a prospectus supplement, you
should rely on the information in the prospectus supplement. You should read
both this prospectus and, if applicable, any prospectus supplement. You should
rely only on the information contained or incorporated by reference in this
prospectus. We have not, and any underwriters have not, authorized anyone to
provide you with information different from that contained in this prospectus.
If anyone provides you with different or inconsistent information, you should
not rely on it.
We are not
offering to sell shares of common stock or seeking offers to buy shares of
common stock in any jurisdiction where offers and sales are not permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or any sale of
the common stock offered hereby. As used in this prospectus, “1st Source,” “we,”
“our,” “ours” and “us” refer to 1st Source Corporation and its consolidated
subsidiaries, except where the context otherwise requires or as otherwise
indicated.
This
prospectus, including information incorporated into this prospectus by
reference, may contain forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995. Forward-looking statements
include statements with respect to our beliefs, plans, objectives, goals,
expectations, anticipations, assumptions, estimates, intentions, and future
performance, and involve known and unknown risks, uncertainties and other
factors, which may be beyond our control, and which may cause actual results,
performance or achievements to be materially different from future results,
performance or achievements expressed or implied by such forward-looking
statements.
All
statements other than statements of historical fact are statements that could be
forward-looking statements. Words such as “believe”, “contemplate”,
“seek”, “estimate”, “plan”, “project”, “anticipate”, “assume”, “expect”,
“intend”, “targeted”, “continue”, “remain”, “will”, “should”, “indicate”,
“would”, “may,” “possible” and other similar expressions are intended to
identify forward-looking statements, but are not the exclusive means of
identifying such statements. Forward-looking statements provide
current expectations or forecasts of future events and are not guarantees of
future performance, nor should they be relied upon as representing management’s
views as of any subsequent date. The forward-looking statements are
based on our expectations and are subject to a number of risks and
uncertainties.
All written
or oral forward-looking statements that are made by or attributable to us are
expressly qualified in their entirety by this cautionary notice. We
have no obligation and do not undertake to update, revise, or correct any of the
forward-looking statements after the date of this report, or after the
respective dates on which such statements otherwise are made. We have
expressed our expectations, beliefs, and projections in good faith and we
believe they have a reasonable basis. However, we make no assurances
that our expectations, beliefs, or projections will be achieved or
accomplished. These forward-looking statements may not be realized
due to a variety of factors, including, without limitation, the
following:
1
|
·
|
Local,
regional, national, and international economic conditions and the impact
they may have on us and our clients and our assessment of that
impact.
|
|
·
|
Changes
in the level of nonperforming assets and
charge-offs.
|
|
·
|
Changes
in estimates of future cash reserve requirements based upon the periodic
review thereof under relevant regulatory and accounting
requirements.
|
|
·
|
The
effects of and changes in trade and monetary and fiscal policies and laws,
including the interest rate policies of the Federal Reserve
Board.
|
|
·
|
Inflation,
interest rate, securities market, and monetary
fluctuations.
|
|
·
|
Political
instability.
|
|
·
|
Acts
of war or terrorism.
|
|
·
|
Substantial
increases in the cost of fuel.
|
|
·
|
The
timely development and acceptance of new products and services and
perceived overall value of these products and services by
others.
|
|
·
|
Changes
in consumer spending, borrowings, and savings
habits.
|
|
·
|
Changes
in the financial performance and/or condition of our
borrowers.
|
|
·
|
Technological
changes.
|
|
·
|
Acquisitions
and integration of acquired
businesses.
|
|
·
|
The
ability to increase market share and control
expenses.
|
|
·
|
Changes
in the competitive environment among bank holding
companies.
|
|
·
|
The
effect of changes in laws and regulations (including laws and regulations
concerning taxes, banking, securities, and insurance) with which we and
our subsidiaries must comply.
|
|
·
|
The
effect of changes in accounting policies and practices and auditing
requirements, as may be adopted by the regulatory agencies, as well as the
Public Company Accounting Oversight Board, the Financial Accounting
Standards Board, and other accounting standard
setters.
|
|
·
|
Changes
in our organization, compensation, and benefit
plans.
|
|
·
|
The
costs and effects of legal and regulatory developments including the
resolution of legal proceedings or regulatory or other governmental
inquires and the results of regulatory examinations or
reviews.
|
|
·
|
Greater
than expected costs or difficulties related to the integration of new
products and lines of business.
|
|
·
|
Our
success at managing the risks described under the caption “Risk
Factors.”
|
Additional
factors that could cause our results to differ materially from those described
in the forward-looking statements can be found in our Annual Report on Form
10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K filed with
the SEC.
2
We are a bank
holding company incorporated in the State of Indiana and headquartered in South
Bend, Indiana. We provide, through our subsidiaries a broad array of
financial products and services. Our principal subsidiary, 1st Source Bank,
offers commercial and consumer banking services, trust and investment management
services, and insurance to individual and business clients through most of its
79 banking center locations in 17 counties in Indiana and Michigan, seven Trust
and Wealth Management locations and seven 1st Source Insurance offices. 1st
Source Bank’s Specialty Finance Group, with 24 locations nationwide, offers
specialized financing services for new and used private and cargo aircraft,
automobiles and light trucks for leasing and rental agencies, medium and heavy
duty trucks, construction equipment, and environmental
equipment. While concentrated in certain equipment types, we enjoy
serving a very diverse client base. We are not dependent upon any
single industry or client.
Our executive
and administrative offices are located at 100 North Michigan Street, South Bend,
Indiana 46601 and our telephone number is (574) 235-2000.
The
Offering:
|
Shares
of fixed rate cumulative perpetual preferred stock, series A, without par
value, offered in this prospectus
|
111,000
shares
|
|
Warrant
offered in this prospectus
|
Warrant
to purchase 837,947 shares of common stock
|
|
Common
stock offered in this prospectus
|
837,947
shares of common stock issuable upon exercise of the
warrant
|
|
Common
stock outstanding as of February 19, 2009
|
24,945,647 shares
|
|
Use
of proceeds
|
We
will not receive any proceeds from the sale of the securities by the
selling securityholders. If the warrant is exercised in full for cash, we
will receive proceeds of approximately $16,650,000, which we intend to use
for general corporate purposes. See “Use of Proceeds.”
|
|
Risk
factors
|
The
warrant and shares of common stock offered in this prospectus involve a
high degree of risk. See “Risk Factors.”
|
|
Nasdaq
Global Select Market for our common stock
|
“SRCE”
|
3
Investing in
our securities involves a high degree of risk. Please see the risk factors
described under the caption “Risk Factors” in our Annual Report on Form 10-K for
the year ended December 31, 2008 as well as any updated risk factors described
in our Annual Report on Form 10-K or Quarterly Report on Form 10-Q which we may
file with the SEC in the future, all of which are incorporated by reference in
this prospectus and in any accompanying prospectus supplement.
Before making
an investment decision, you should carefully consider these risks as well as
information we include or incorporate by reference in this prospectus and in any
accompanying prospectus supplement. The risks and uncertainties we have
described are not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that currently seem immaterial may
also affect our business operations. You should also consider the
other important factors that can affect our business discussed under the caption
“Special Note Regarding Forward-Looking Statements.”
We will not
receive any proceeds from the sale of the securities by the selling
securityholders. If the warrant is exercised in full for cash, we will receive
proceeds of approximately $16,650,000, which we intend to use for general
corporate purposes.
No shares of
the series A preferred stock, or any other class of preferred stock, were
outstanding during the years ended December 31, 2008, 2007, 2006, 2005 or 2004,
and we did not pay preferred stock dividends during those periods. Consequently,
the ratios of earnings to fixed charges and preferred dividends are the same as
the ratios of earnings to fixed charges for such periods. The ratios of earnings
to fixed charges for the years ended December 31, 2008, 2007, 2006, 2005 and
2004 are as follows:
Consolidated
Ratios of Earnings to Fixed Charges
|
Year
ended December 31,
|
||||||||||||
|
2008
|
2007
|
2006
|
2005
|
2004
|
||||||||
|
Excluding
interest on deposits
|
3.86
|
3.13
|
4.40
|
4.59
|
4.06
|
|||||||
|
Including
interest on deposits
|
1.45
|
1.31
|
1.58
|
1.70
|
1.65
|
|||||||
For purposes
of computing these ratios, earnings represent income or loss before income tax
expense and fixed charges. Fixed charges, excluding interest on deposits,
include interest (other than on deposits), whether expensed or capitalized.
Fixed charges, including interest on deposits, consist of the foregoing items
plus interest on deposits.
This offering
is being made solely to allow the selling securityholders to offer
and sell the securities to the public. The selling securityholders
may offer for resale some or all of their securities at the time and price that
they choose. On any given day, the price per share of our common
stock is likely to be based on the market price for our common stock, as quoted
on the Nasdaq Global Select Market.
The following
is a brief description of the terms of the series A preferred stock that may be
resold by the selling securityholders. This summary does not purport to be
complete in all respects. This description is subject to, and qualified in its
entirety by, reference to our articles of incorporation, as
4
amended,
including the certificate of designations with respect to the series A preferred
stock, copies of which have been filed with the SEC and are also available upon
request from us.
|
General
|
Under our
articles of incorporation, as amended, we have authority to issue up to
10,000,000 shares of preferred stock, without par value. Of such number of
shares of preferred stock, 111,000 shares have been designated as series A
preferred stock, all of which shares of series A preferred stock were issued to
the Treasury in a transaction exempt from the registration requirements of the
Securities Act. The issued and outstanding shares of series A preferred stock
are validly issued, fully paid and nonassessable. No other shares of preferred
stock are issued and outstanding as of the date hereof.
|
Dividends
Payable on Shares of Series A Preferred
Stock
|
Holders of
shares of series A preferred stock are entitled to receive if, as and when
declared by our board of directors or a duly authorized committee of the board,
out of assets legally available for payment, cumulative cash dividends at a rate
per annum of 5% per share on a liquidation preference of $1,000 per share of
series A preferred stock with respect to each dividend period from January 23,
2009 to, but excluding, February 15, 2014. From and after February 15, 2014,
holders of shares of series A preferred stock are entitled to receive cumulative
cash dividends at a rate per annum of 9% per share on a liquidation preference
of $1,000 per share of series A preferred stock with respect to each dividend
period thereafter.
Dividends are
payable quarterly in arrears on each February 15, May 15, August 15 and November
15, each a “dividend payment date,” starting with February 15, 2009. If any
dividend payment date is not a business day, then the next business day will be
the applicable dividend payment date, and no additional dividends will accrue as
a result of the applicable postponement of the dividend payment date. Dividends
payable during any dividend period are computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends payable with respect to the series
A preferred stock are payable to holders of record of shares of series A
preferred stock on the date that is 15 calendar days immediately preceding the
applicable dividend payment date or such other record date as the board of
directors or any duly authorized committee of the board determines, so long as
such record date is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the series
A preferred stock, we are required to provide written notice to the holders of
shares of series A preferred stock prior to the applicable dividend payment
date.
Since we
receive substantially all of our revenue from dividends from 1st Source Bank,
our ability to pay dividends on our common stock or preferred stock depends on
our receipt of dividends from 1st Source Bank. Dividend payments from 1st Source
Bank are subject to legal and regulatory limitations, generally based on net
income and retained earnings. The ability of 1st Source Bank to pay dividends to
us is also subject to its profitability, financial condition, capital
expenditures and other cash flow requirements. In addition, we are subject to
Indiana state laws relating to the payment of dividends.
|
Priority
of Dividends
|
With respect
to the payment of dividends and the amounts to be paid upon liquidation, the
series A preferred stock will rank:
|
·
|
senior
to our common stock and all other equity securities designated as ranking
junior to the series A preferred stock;
and
|
5
|
·
|
at
least equally with all other equity securities designated as ranking on a
parity with the series A preferred stock, or parity stock, with respect to
the payment of dividends and distribution upon any liquidation,
dissolution or winding-up of 1st
Source.
|
So long as
any shares of series A preferred stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on the common stock or other junior stock, other than a
dividend payable solely in common stock. We and our subsidiaries also may not
purchase, redeem or otherwise acquire for consideration any shares of our common
stock or other junior stock unless we have paid in full all accrued dividends on
the series A preferred stock for all prior dividend periods, other
than:
|
·
|
purchases,
redemptions or other acquisitions of our common stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business and consistent with past practice
pursuant to a publicly announced repurchase plan up to the increase in
diluted shares outstanding resulting from the grant, vesting or exercise
of equity-based compensation;
|
|
·
|
purchases
or other acquisitions by broker-dealer subsidiaries of 1st Source solely
for the purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
|
|
·
|
purchases
by broker-dealer subsidiaries of 1st Source for resale pursuant to an
offering by us of our stock that is underwritten by the related
broker-dealer subsidiary;
|
|
·
|
any
dividends or distributions of rights or junior stock in connection with
any shareholders’ rights plan or redemptions or repurchases of rights
pursuant to any shareholders’ rights
plan;
|
|
·
|
the
acquisition of record ownership by 1st Source or any of its subsidiaries
of junior stock or parity stock for the beneficial ownership of any other
person who is not 1st Source or any of its subsidiaries, including as
trustee or custodian; and
|
|
·
|
the
exchange or conversion of junior stock for or into other junior stock or
of parity stock for or into other parity stock or junior stock but only to
the extent that such exchange or conversion is required pursuant to
binding contractual agreements entered into before January 23, 2009 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for common stock.
|
If we
repurchase shares of series A preferred stock from a holder other than the
Treasury, we must offer to repurchase a ratable portion of the series A
preferred stock then held by the Treasury on the same terms and
conditions.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefor, on the series A preferred stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefor falling within the dividend period and related
to the dividend payment date for the series A preferred stock), with respect to
the series A preferred stock and any other parity stock shall be declared
ratably among the holders of any such shares who have the right to receive
dividends, in proportion to the respective amounts of the undeclared and unpaid
dividends relating to the dividend period.
Subject to
the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors, or a duly authorized committee of the
board, may be declared and paid on our common stock and any other stock ranking
equally with or junior to the series A preferred stock from time to time out of
any funds legally available for such payment, and the series A preferred stock
shall not be entitled to participate in any such dividend. Prior to the earlier
of January 23, 2012, or
6
the date
on which all of the series A preferred stock has been redeemed or Treasury has
transferred all of the shares of series A preferred stock to third parties that
are not affiliates of Treasury, we may not, without the consent of Treasury,
declare or pay a dividend or make any distribution on our common stock, other
than regular quarterly cash dividends of not more than $0.16 per share of common
stock, as adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction; dividends payable solely in shares of
our common stock; and dividends or distributions of rights or junior stock in
connection with a shareholders’ rights plan.
|
Redemption
|
The series A
preferred stock may not be redeemed prior to February 15, 2012, unless we have
received aggregate gross proceeds from one or more qualified equity offerings
(as described below) of not less than $27,750,000, which equals 25% of the
aggregate liquidation amount of the series A preferred stock on the date of
issuance. In such a case, we may redeem the series A preferred stock, subject to
the approval of the Federal Reserve Bank of Chicago, or FRB, in whole or in
part, upon notice as described below, up to a maximum amount equal to the
aggregate net cash proceeds received by us from such qualified equity offerings.
A “qualified equity offering” is a sale and issuance for cash by us, to persons
other than 1st Source or its subsidiaries after January 23, 2009, of shares of
perpetual preferred stock, common stock or a combination thereof, that in each
case qualify as tier 1 capital of 1st Source at the time of issuance under the
applicable risk-based capital guidelines of the FRB. Qualified equity offerings
do not include issuances made in connection with acquisitions, issuances of
trust preferred securities and issuances of common stock and/or perpetual
preferred stock made pursuant to agreements or arrangements entered into, or
pursuant to financing plans that were publicly announced, on or prior to October
13, 2008.
On or after
February 15, 2012, the series A preferred stock may be redeemed at any time,
subject to the approval of the FRB, in whole or in part, subject to notice as
described below.
In any
redemption, the redemption price is an amount equal to the per share liquidation
amount plus accrued and unpaid dividends to, but excluding, the date of
redemption.
The series A
preferred stock will not be subject to any mandatory redemption, sinking fund or
similar provisions. Holders of shares of series A preferred stock have no right
to require the redemption or repurchase of the series A preferred stock. Our
board of directors, or a duly authorized committee of the board of directors,
has full power and authority to prescribe the terms and conditions upon which
the series A preferred stock will be redeemed from time to time, subject to the
provisions of the certificate of designations.
If fewer than
all of the outstanding shares of series A preferred stock are to be redeemed,
the shares to be redeemed will be selected either pro rata from the holders of
record of shares of series A preferred stock in proportion to the number of
shares held by those holders or in such other manner as our board of directors
or a duly authorized committee thereof may determine to be fair and
equitable.
Notwithstanding the
foregoing, The American Recovery and Reinvestment Act of 2009 (“ARRA”), which
was signed into law by President Obama on February 17, 2009, provides that the
Secretary of the Treasury shall permit a recipient of funds under the Troubled
Assets Relief Program, subject to consultation with the recipient’s appropriate
Federal banking agency, to repay such assistance without regard to whether the
recipient has replaced such funds from any other source or to any waiting
period. ARRA further provides that when the recipient repays such
assistance, the Secretary of the Treasury shall liquidate the warrants
associated with the assistance at the current market price. While
Treasury has not yet issued implementing regulations, it appears that ARRA
will permit 1st Source, if it so elects and following consultation with the FRB,
to redeem the series A preferred stock at any time without
restriction.
7
We will mail
notice of any redemption of series A preferred stock by first class mail,
postage prepaid, addressed to the holders of record of the shares of series A
preferred stock to be redeemed at their respective last addresses appearing on
our books. This mailing will be at least 30 days and not more than 60 days
before the date fixed for redemption. Any notice mailed or otherwise given as
described in this paragraph will be conclusively presumed to have been duly
given, whether or not the holder receives the notice, and failure duly to give
the notice by mail or otherwise, or any defect in the notice or in the mailing
or provision of the notice, to any holder of series A preferred stock designated
for redemption will not affect the redemption of any other series A preferred
stock. Each notice of redemption will set forth the applicable redemption date,
the redemption price, the place where shares of series A preferred stock are to
be redeemed, and the number of shares of series A preferred stock to be redeemed
(and, if less than all shares of series A preferred stock held by the applicable
holder, the number of shares to be redeemed from the holder).
Shares of
series A preferred stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
|
Liquidation
Rights
|
In the event
that we voluntarily or involuntarily liquidate, dissolve or wind up our affairs,
holders of series A preferred stock will be entitled to receive an amount per
share, referred to as the total liquidation amount, equal to the fixed
liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of the
series A preferred stock will be entitled to receive the total liquidation
amount out of our assets that are available for distribution to shareholders,
after payment or provision for payment of our debts and other liabilities, but
before any distribution of assets is made to holders of our common stock or any
other shares ranking, as to that distribution, junior to the series A preferred
stock.
If our assets
are not sufficient to pay the total liquidation amount in full to all holders of
series A preferred stock and all holders of any shares of outstanding parity
stock, the amounts paid to the holders of series A preferred stock and other
shares of parity stock will be paid pro rata in accordance with the respective
total liquidation amount for those holders. If the total liquidation amount per
share of series A preferred stock has been paid in full to all holders of series
A preferred stock and other shares of parity stock, the holders of our common
stock or any other shares ranking, as to such distribution, junior to the series
A preferred stock will be entitled to receive all of our remaining assets
according to their respective rights and preferences.
For purposes
of the liquidation rights, neither the sale, conveyance, exchange or transfer of
all or substantially all of our property and assets, nor the consolidation or
merger by us with or into any other corporation or by another corporation with
or into us, will constitute a liquidation, dissolution or winding-up of our
affairs.
|
Voting
Rights
|
Except as
indicated below or otherwise required by law, the holders of series A preferred
stock will not have any voting rights.
Election
of Two Directors upon Non-Payment of Dividends
If the
dividends on the series A preferred stock have not been paid for an aggregate of
six quarterly dividend periods or more (whether or not consecutive), the
authorized number of directors then constituting our board of directors will be
increased by two. Holders of series A preferred stock, together with the holders
of any outstanding parity stock with like voting rights, referred to as voting
parity stock, voting as a single class, will be entitled to elect the two
additional members of our board of directors, referred to as the “preferred
stock directors,” at the next annual meeting (or at a special meeting called
for
8
the
purpose of electing the preferred stock directors prior to the next annual
meeting) and at each subsequent annual meeting until all accrued and unpaid
dividends for all past dividend periods have been paid in full. Upon payment in
full of all accrued and unpaid dividends, the right to elect preferred stock
directors will terminate, subject to revesting in the event that dividends on
the series A preferred stock are not paid for an aggregate of six quarterly
dividend payments. The election of any preferred stock director is subject to
the qualification that the election would not cause us to violate the corporate
governance requirement of The Nasdaq Stock Market (or any other exchange on
which our securities may be listed) that listed companies must have a majority
of independent directors.
Upon the
termination of the right of the holders of series A preferred stock and voting
parity stock to vote for preferred stock directors, as described above, the
preferred stock directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of 1st Source will be reduced by the number of preferred stock
directors that the holders of series A preferred stock and voting parity stock
had been entitled to elect. The holders of a majority of shares of series A
preferred stock and voting parity stock, voting as a class, may remove any
preferred stock director, with or without cause, and the holders of a majority
of the shares of series A preferred stock and voting parity stock, voting as a
class, may fill any vacancy created by the removal of a preferred stock
director. If the office of a preferred stock director becomes vacant for any
other reason, the remaining preferred stock director may choose a successor to
fill such vacancy for the remainder of the unexpired term.
Other
Voting Rights
So long as
any shares of series A preferred stock are outstanding, in addition to any other
vote or consent of shareholders required by law or by our articles of
incorporation, as amended, the vote or consent of the holders of at least 66
2/3% of the shares of series A preferred stock at the time outstanding, voting
separately as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
|
·
|
any
amendment or alteration of the certificate of designations for the series
A preferred stock or our articles of incorporation, as amended, 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 capital stock ranking
senior to the series A preferred stock with respect to payment of
dividends and/or distribution of assets on any liquidation, dissolution or
winding up of 1st Source;
|
|
·
|
any
amendment, alteration or repeal of any provision of the certificate of
designations for the series A preferred stock or our articles of
incorporation, as amended, so as to adversely affect the rights,
preferences, privileges or voting powers of the series A preferred stock;
or
|
|
·
|
any
consummation of a binding share exchange or reclassification involving the
series A preferred stock or of a merger or consolidation of 1st Source
with another entity, unless the shares of series A preferred stock remain
outstanding following any such transaction or, if 1st Source is not the
surviving or resulting entity or its ultimate parent, are converted into
or exchanged for preference securities, and such remaining outstanding
shares of series A preferred stock or preference securities have rights,
references, privileges and voting powers that are not materially less
favorable than the rights, preferences, privileges or voting powers of the
series A preferred stock, taken as a
whole.
|
To the extent
of the voting rights of the series A preferred stock, each holder of series A
preferred stock will have one vote for each $1,000 of liquidation preference to
which such holder’s shares of series A preferred stock are
entitled.
9
The foregoing
voting provisions will not apply if, at or prior to the time when the vote or
consent would otherwise be required, all outstanding shares of series A
preferred stock have been redeemed 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.
The following
is a brief description of the terms of the warrant that may be resold by the
selling securityholders. This summary does not purport to be complete in all
respects. This description is subject to, and qualified in its entirety by,
reference to the warrant, a copy of which has been filed with the SEC and is
also available upon request from us.
Shares
of Common Stock Subject to the Warrant
The warrant
is initially exercisable for 837,947 shares of our common stock. If we complete
one or more qualified equity offerings, as described at “Description of Series A
Preferred Stock – Redemption,” on or prior to December 31, 2009 that result in
our receipt of aggregate gross proceeds of not less than $111,000,000, which is
equal to 100% of the aggregate fixed liquidation amount of our $1,000 per share
series A preferred stock, plus any accrued and unpaid dividends, the number of
shares of common stock underlying the warrant then held by the Treasury will be
reduced by 50% to 418,974 shares. The number of shares subject to the warrant
are subject to the further adjustments described below under the heading
“-Adjustments to the Warrant.”
Exercise
of the Warrant
The initial
exercise price applicable to the warrant is $19.87 per share of common stock for
which the warrant may be exercised. The warrant may be exercised at any time on
or before January 23, 2019 by surrender of the warrant and a completed notice of
exercise attached as an annex to the warrant and the payment of the exercise
price for the shares of common stock for which the warrant is being exercised.
The exercise price may be paid either by the withholding by 1st Source of such
number of shares of common stock issuable upon exercise of the warrant equal to
the value of the aggregate exercise price of the warrant, determined by
reference to the market price of our common stock on the trading day on which
the warrant is exercised or, if agreed to by us and the warrantholder, by the
payment of cash, certified or cashier’s check, or wire transfer, in an amount
equal to the aggregate exercise price. The exercise price applicable to the
warrant is subject to the further adjustments described below under the heading
“-Adjustments to the Warrant.”
Upon exercise
of the warrant, certificates for the shares of common stock issuable upon
exercise will be issued to the warrantholder. We will not issue fractional
shares upon any exercise of the warrant. Instead, the warrantholder will be
entitled to a cash payment equal to the market price of our common stock on the
last trading day preceding the exercise of the warrant, less the prorated
exercise price of the warrant, for any fractional shares that would have
otherwise been issuable upon exercise of the warrant. We will at all times
reserve the aggregate number of shares of our common stock for which the warrant
may be exercised. We have listed the shares of common stock issuable upon
exercise of the warrant with the Nasdaq Global Select Market.
Rights
as a Shareholder
The
warrantholder shall have no rights or privileges of the holders of our common
stock, including any voting rights, until (and then only to the extent) the
warrant has been exercised.
10
Transferability;
Restrictions on Exercise of Warrant
The initial
selling securityholder may not transfer a portion of the warrant, and/or
exercise the warrant, with respect to more than 418,974 shares of common stock
until the earlier of the date on which 1st Source has received aggregate gross
proceeds from one or more qualified equity offerings of at least $111,000,000
and December 31, 2009. The warrant, and all rights under the warrant, are
otherwise transferable and exercisable.
Adjustments
to the Warrant
Adjustments in
Connection with Stock Splits, Subdivisions, Reclassifications and
Combinations. The number of shares for which the warrant may be exercised
and the exercise price applicable to the warrant will be proportionately
adjusted in the event we pay dividends or make distributions on our common stock
in shares of our common stock, or subdivide, combine or reclassify outstanding
shares of our common stock.
Anti-dilution
Adjustment. Until the earlier of January 23, 2012 and the date the
initial selling securityholder no longer holds the warrant (and other than in
certain permitted transactions described below), if we issue any shares of
common stock (or securities convertible or exercisable into common stock) for
less than 90% of the market price of the common stock on the last trading day
prior to pricing such shares, then the number of shares of common stock into
which the warrant is exercisable and the exercise price will be adjusted.
Permitted transactions include issuances:
|
·
|
as
consideration for or to fund the acquisition of businesses and/or related
assets;
|
|
·
|
in
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our board of directors;
|
|
·
|
in
connection with public or broadly marketed offerings and sales of common
stock or convertible securities for cash conducted by us or our affiliates
pursuant to registration under the Securities Act, or Rule 144A
thereunder, on a basis consistent with capital-raising transactions by
comparable financial institutions;
and
|
|
·
|
in
connection with the exercise of preemptive rights on terms existing as of
January 23, 2009.
|
Other
Distributions. If we declare any dividends or distributions other than a
quarterly cash dividend equal to or less than $0.16 per share, the exercise
price of the warrant will be adjusted to reflect such dividend or
distribution.
Certain
Repurchases. If we effect a pro rata repurchase of common stock, both the
number of shares issuable upon exercise of the warrant and the exercise price
will be adjusted.
Business
Combinations. In the event of a merger, consolidation or similar
transaction involving 1st Source and requiring shareholder approval, the
warrantholder’s right to receive shares of our common stock upon exercise of the
warrant shall be converted into the right to exercise the warrant for the
consideration that would have been payable to the warrantholder with respect to
the shares of common stock for which the warrant may be exercised, as if the
warrant had been exercised prior to such merger, consolidation or similar
transaction.
General
The following
is a brief description of our common stock that may be resold by the selling
securityholders. This summary does not purport to be complete in all respects.
This description is subject
11
to and
qualified in its entirety by reference to our charter documents and amended
by-laws. See “Where You Can Find More Information.”
We have
40,000,000 shares of authorized common stock, without par value per share, of
which 24,945,647 shares were outstanding as of February 19,
2009.
Holders of
our common stock are entitled to one vote for each share held of record on all
matters submitted to a vote of shareholders. Holders of shares of
common stock are not entitled to cumulative voting rights in the election of
directors. In the event of our liquidation, dissolution or winding
up, holders of common stock are entitled to share ratably in all assets
remaining after payment of liabilities and liquidation preferences, if any, on
any outstanding shares of preferred stock. Holders of common stock
have no preemptive rights and have no rights to convert their common stock into
any other securities. The common stock is not redeemable. All of the outstanding
shares of 1st Source common stock are fully paid and
non-assessable.
Our series A
preferred stock has, and any other series of preferred stock upon issuance will
have, preference over our common stock with respect to the payment of dividends.
Our preferred stock also has such other preferences as currently, or as may be,
fixed by our board of directors. We may pay dividends on our common
stock only if we have paid or provided for all dividends on our outstanding
series of preferred stock for the then current period and, in the case of any
cumulative preferred stock, including the series A preferred stock, all prior
periods. Prior to the earlier of January 23, 2012, or the date on
which all of the series A preferred stock has been redeemed or Treasury has
transferred all of the shares of series A preferred stock to third parties that
are not affiliates of Treasury, we may not, without the consent of Treasury,
declare or pay a dividend or make any distribution on our common stock, other
than regular quarterly cash dividends of not more than $0.16 per share of common
stock, as adjusted for any stock split, stock dividend, reverse stock split,
reclassification or similar transaction; dividends payable solely in shares of
our common stock; and dividends or distributions of rights or junior stock in
connection with a shareholders’ rights plan.
Our common
stock is listed on the Nasdaq Global Select Market.
Transfer
Agent and Registrar
The transfer
agent and registrar for 1st Source common stock is American Stock Transfer
Company.
The selling
securityholders and their successors, including their transferees, may sell the
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. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The
securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined at
the time of sale or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions, in the following
manner:
|
·
|
on
any national securities exchange or quotation service on which the warrant
or the common stock may be listed or quoted at the time of sale,
including, as of the date of this prospectus, the Nasdaq Global Select
Market in the case of the common
stock;
|
|
·
|
in
the over-the-counter market;
|
12
|
·
|
in
transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
|
|
·
|
through
the writing of options, whether the options are listed on an options
exchange or otherwise.
|
In addition,
any securities that qualify for sale pursuant to Rule 144 under the Securities
Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In connection
with the sale of the securities or otherwise, the selling securityholders may
enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the securities in the course of hedging the positions they
assume. The selling securityholders may also sell short the securities and
deliver securities to close out short positions, or loan or pledge the
securities to broker-dealers that in turn may sell these
securities.
The aggregate
proceeds to the selling securityholders from the sale of the securities will be
the purchase price of the securities less discounts and commissions, if any. If
the warrant is exercised in full for cash, we will receive proceeds of
approximately $16,650,000, which we intend to use for general corporate
purposes.
In effecting
sales, broker-dealers or agents engaged by the selling securityholders may
arrange for other broker-dealers to participate. Broker-dealers or agents may
receive commissions, discounts or concessions from the selling securityholders
in amounts to be negotiated immediately prior to the sale.
In offering
the securities covered by this prospectus, the selling securityholders and any
broker-dealers who execute sales for the selling securityholders may be deemed
to be “underwriters” within the meaning of Section 2(a)(11) of the Securities
Act in connection with such sales. Any profits realized by the selling
securityholders and the compensation of any broker-dealer may be deemed to be
underwriting discounts and commissions. Selling securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act will
be subject to the prospectus delivery requirements of the Securities Act and may
be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Securities Exchange Act of 1934, referred to as the
Exchange Act.
In order to
comply with the securities laws of certain states, if applicable, the securities
must be sold in such jurisdictions only through registered or licensed brokers
or dealers. In addition, in certain states the securities may not be sold unless
they have been registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is available and is
complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
selling securityholders. In addition, we will make copies of this prospectus
available to the selling securityholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the Nasdaq Global Select Market pursuant to
Rule 153 under the Securities Act.
At the time a
particular offer of securities is made, if required, a prospectus supplement
will set forth the number and type of securities being offered and the terms of
the offering, including the name of any underwriter, dealer or agent, the
purchase price paid by any underwriter, any discount, commission and other item
constituting compensation, any discount, commission or concession allowed or
reallowed or paid to any dealer, and the proposed selling price to the
public.
We do not
intend to apply for listing of the warrant on any securities exchange or for
inclusion of the warrant in any automated quotation system unless requested by
the initial selling shareholder. No assurance can be given as to the liquidity
of the trading market, if any, for the warrant.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also agreed,
among other things, to register the
13
securities
and bear substantially all expenses in connection with the registration of the
securities covered by this prospectus.
On January
23, 2009, we issued the securities covered by this prospectus to the United
States Department of Treasury, which is the initial selling securityholder under
this prospectus, in a transaction exempt from the registration requirements of
the Securities Act. The initial selling securityholder, or its successors,
including transferees, may from time to time offer and sell, pursuant to this
prospectus or a supplement to this prospectus, any or all of the securities they
own. The securities to be offered under this prospectus for the account of the
selling securityholders are:
|
|
·
|
a
warrant to purchase 837,947 shares of our common stock, representing
beneficial ownership of approximately 3.3% of our common stock as of
January 23, 2009; and
|
|
|
·
|
837,947
shares of our common stock issuable upon exercise of the warrant, which
shares, if issued, would represent ownership of approximately 3.3% of our
common stock as of January 23,
2009.
|
For purposes
of this prospectus, we have assumed that, after completion of the offering, none
of the securities covered by this prospectus will be held by the selling
securityholders.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. To our knowledge, the
initial selling securityholder has sole voting and investment power with respect
to the securities.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any of the
securities offered by this prospectus. Because the selling securityholders may
offer all or some of the securities pursuant to this offering, and because
currently no sale of any of the securities is subject to any agreements,
arrangements or understandings, we cannot estimate the number of the securities
that will be held by the selling securityholders after completion of the
offering.
Other than
with respect to the acquisition of the securities, the initial selling
securityholder 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.
The validity
of the series A preferred stock, the warrant and the common stock offered hereby
have been passed upon for us by Barnes & Thornburg LLP.
The
consolidated financial statements of 1st Source Corporation appearing in 1st
Source Corporation’s Annual Report (Form 10-K) for the year ended December 31,
2008 and the effectiveness of 1st Source Corporation’s internal control over
financial reporting as of December 31, 2008 have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set forth in their
reports thereon, included therein, and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
We file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You may read and copy materials that we have filed with the SEC at
the SEC’s public reference
14
room
located at 100 F Street, N.E., Washington, D.C. 20549. You may obtain
information about the public reference room by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available to the public on the SEC’s
Internet website at http://www.sec.gov or on our
website at www.1stsource.com. The
information on the websites listed above is not and should not be considered
part of this prospectus and is not incorporated by reference in this document.
Those websites are and are only intended to be inactive textual
references.
We
incorporate by reference into this prospectus the documents listed below and any
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus and prior to the termination of
the offering of the securities under this prospectus; provided, however, that we are not
incorporating any information furnished under either Item 2.02 or Item 7.01 of
any current report on Form 8-K. The information incorporated by reference into
this prospectus is considered a part of this prospectus, and information that we
file later with the Securities and Exchange Commission, prior to the termination
of the offering of common stock under this prospectus, will automatically update
and supersede the previously filed information.
|
|
·
|
Our
Annual Report on Form 10-K for our fiscal year ended December 31,
2008.
|
|
|
·
|
Our
Current Report on Form 8-K filed on January 23,
2009.
|
|
|
·
|
The
information set forth under the caption “Description of Registrant’s
Securities to be Registered” in the registrant’s Registration Statement on
Form S-2, Reg. No. 33-9087, dated December 16, 1986, including any
amendments or reports filed for the purpose of updating that
description.
|
You may
request a copy of these filings (other than exhibits to documents, unless the
exhibits are specifically incorporated by reference into the documents that this
prospectus incorporates), at no cost, by writing to or telephoning us at the
following address:
1st
Source Corporation
100 North
Michigan Street
South
Bend, Indiana 46601
(574)
235-2000
15
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 in connection with the sale
and distribution of the Securities being registered hereby, all of which will be
borne by 1st Source (except any underwriting discounts and commissions and
expenses incurred by the selling securityholders for brokerage, accounting, tax
or legal services or any other expenses incurred by the selling securityholders
in disposing of the shares). All amounts shown are estimates except the SEC
registration fee.
|
SEC
registration fee
|
$
|
5,017
|
||
|
Legal
fees and expenses
|
$
|
20,000
|
||
|
Accounting
Fees
|
$
|
5,000
|
||
|
Miscellaneous
Expenses
|
$
|
5,000
|
||
|
Total
expenses
|
$
|
35,017
|
|
Item
15. Indemnification
of Directors and Officers
|
|
The Indiana
Business Corporation Law provides in regard to indemnification of directors and
officers as follows:
Sec. 8. (a) A
corporation may indemnify an individual made a party to a proceeding because the
individual is or was a director against liability incurred in the proceeding
if:
(1) the
individual’s conduct was in good faith; and
(2) the
individual reasonably believed:
(A) in
the case of conduct in the individual’s official capacity with the corporation,
that the individual’s conduct was in its best interests; and
(B) in
all other cases, that the individual’s conduct was at least not opposed to its
best interests; and
(3) in
the case of any criminal proceeding, the individual either:
(A) had
reasonable cause to believe the individual’s conduct was lawful; or
(B) had
no reasonable cause to believe the individual’s conduct was
unlawful.
(b) A
director’s conduct with respect to an employee benefit plan for a purpose the
director reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(2)(B).
(c) The
termination of a proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent is not, of itself, determinative
that the director did not meet the standard of conduct described in this
section.
23-1-37-9
Mandatory indemnification of
director against expense
II-1
23-1-37-13
Officers, employees or agents;
indemnification and advance of expense
Sec. 13.
Unless a corporation’s articles of incorporation provide otherwise:
(1) an
officer of the corporation, whether or not a director, is entitled to mandatory
indemnification under section 9 of this chapter, and is entitled to apply for
court-ordered indemnification under section 11 of this chapter, in each case to
the same extent as a director;
(2) the
corporation may indemnify and advance expenses under this chapter to an officer,
employee, or agent of the corporation, whether or not a director, to the same
extent as to a director; and
(3) a
corporation may also indemnify and advance expenses to an officer, employee, or
agent, whether or not a director, to the extent, consistent with public policy,
that may be provided by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract.
23-1-37-15 Indemnification rights under
articles of incorporation, bylaws, or resolutions
Sec. 15.
(a) The indemnification and advance for expenses provided for or authorized by
this chapter does not exclude any other rights to indemnification and advance
for expenses that a person may have under:
(1) a
corporation’s articles of incorporation or bylaws;
(2) a
resolution of the board of directors or of the shareholders; or
(3) any
other authorization, whenever adopted, after notice, by a majority vote of all
the voting shares then issued and outstanding.
(b) If
the articles of incorporation, bylaws, resolutions of the board of directors or of the shareholders, or other duly
adopted authorization of indemnification or advance for expenses limit
indemnification or advance for expenses, indemnification and advance for
expenses are valid only to the extent consistent with the articles, bylaws,
resolution of the board of directors or of the shareholders, or other duly
adopted authorization of indemnification or advance for
expenses.
(c) This
chapter does not limit a corporation’s power to pay or reimburse expenses
incurred by a director, officer, employee, or agent in connection with the
person’s appearance as a witness in a proceeding at a time when the person has
not been made a named defendant or respondent to the proceeding.
Article
VIII of the Articles of Incorporation of the Registrant provides:
“The
Corporation shall, to the fullest extent permitted in and in the manner provided
by Chapter 37 of the Act, indemnify every person who is or was a Director of the
Corporation. The Corporation may advance expenses to every person who is or was
a Director of the Corporation to the fullest extent permitted in and in the
manner provided by Chapter 37 of the Act. The Corporation shall indemnify and
advance expenses to every person who is or was an Officer of the Corporation to
the same extent as if such person were a Director of the Corporation. The
foregoing indemnification and advance of expenses for Directors and Officers of
the Corporation shall apply when such persons are serving in their official
capacity with the Corporation, when serving at the Corporation’s request while a
Director or Officer of the Corporation as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or other enterprise, whether for
profit or not, and when serving as a director or officer of any corporation at
least eighty percent (80%) of the voting capital stock of which is owned of
record by the Corporation. All references in this paragraph to Chapter 37 of the
Act shall be deemed to include any amendment or successor thereto. Nothing
contained in this paragraph shall limit or preclude the exercise of any right
relating to indemnification or advance of expenses to any person who is or was a
Director or Officer of the Corporation or the ability of the Corporation to
otherwise indemnify or advance expenses to any such person. The foregoing
provisions shall be binding upon any successor to the Corporation so that each
person who is or was a Director or
II-2
Officer
of the Corporation shall be in the same position with respect to any resulting,
surviving, or succeeding entity as he or she would have been had the separate
legal existence of the Corporation continued; provided, that unless expressly
provided or agreed otherwise, this sentence shall be applicable only to
Directors and Officers acting in such capacity prior to termination of the
separate legal existence of the Corporation. If any word, clause, or sentence of
the foregoing provisions regarding indemnification or advancement of expenses
shall be held invalid as contrary to law or public policy, it shall be severable
and the provisions remaining shall not be otherwise affected. This paragraph
shall be interpreted and enforced so as to give maximum rights to
indemnification and advance of expenses to each person who is or was a Director
or Officer of the Corporation. If any Court holds any word, clause, or sentence
of this paragraph invalid, the Court is authorized and empowered to rewrite
these provisions to achieve such purpose.”
Article 8
of the By-Laws of the Registrant provides as follows:
8.01
INDEMNIFICATION:
(A) Every person
who is or was a Director or Officer of the Corporation shall be indemnified by
the Corporation against all liability, including any obligation to pay a
judgment, settlement, penalty, excise tax, or fine, and against reasonable
expenses, including counsel fees, actually incurred by such person in his or her
Official Capacity, provided that such person is determined in the manner
specified in D below to have met the standard of conduct specified in E
below. Upon demand for such indemnification, the Corporation shall
proceed as provided in D below to determine whether such person is so entitled
to indemnification.
(B) Every person
who is or was a Director or Officer of the Corporation shall be indemnified by
the Corporation against reasonable expenses, including counsel fees, actually
incurred by such person in connection with any Proceeding to which such person
was a party because of such person serving in his or her Official Capacity if
such person was wholly successful, on the merits or otherwise, in the defense of
such Proceeding.
(C) The
Corporation may, upon authorization of those entitled to select counsel under
D.(3) below, pay for or reimburse the reasonable expenses, including counsel
fees, incurred by any person who is or was a Director or Officer of the
Corporation in connection with any Proceeding to which such person is a Party
because of such person serving in his or her Official Capacity in advance of
final disposition of the Proceeding if:
(1) The person
furnishes the Corporation a written affirmation of the person’s good faith
belief that the person has met the standard of conduct specified in E
below;
(2) The person
furnishes the Corporation an unlimited general written undertaking, executed
personally or on the person’s behalf, to repay the advance if it is ultimately
determined that the person did not meet such standard of conduct;
and
(3) A
determination is made in the manner specified in D below that the facts then
known to those making the determination would not preclude indemnification under
A above.
(D) The
determination shall be made by any one of the following procedures, as selected
by the Board of Directors by majority vote of the entire Board of
Directors:
(1) By the Board
of Directors by majority vote of a quorum consisting of Directors not at the
time parties to the proceeding as to which indemnification or advancement of
expenses is at issue.
(2) If a quorum
cannot be obtained under Subdivision (1), by majority vote of a committee duly
designated by the Board of Directors (in which designation Directors who are
Parties may participate), consisting solely of two or more Directors not at the
time Parties to the Proceeding.
II-3
(3) By special
legal counsel selected by the Board of Directors or its committee in the manner
prescribed in Subdivision (1) or (2); or, if a quorum of the Board of Directors
cannot be obtained under Subdivision (1) and a committee cannot be designated
under Subdivision (2), by special legal counsel selected by majority vote of the
full Board of Directors (in which selection Directors who are Parties may
participate).
(4) By a majority
vote of shareholders excluding shares owned or controlled by Directors or
Officers who at the time of the vote are Parties to the Proceeding.
(E) The standard
of conduct for any act or omission is as follows:
(1) In the case
of any criminal Proceeding, the person either had reasonable cause to believe
that the person’s conduct was lawful, or, had no reasonable cause to believe the
person’s conduct was unlawful.
(2) In all other
cases, either (a)(i) the person’s conduct was in good faith, and (ii) the person
reasonably believed that the person’s conduct was in the Corporation’s best
interest, or, in the situation described in F.(3)(c) below, the person
reasonably believed that the person’s conduct was not opposed to the
Corporation’s best interests; or (b) the person’s breach of or failure to act in
accordance with the standard set forth in E.(2)(a) above did not constitute
willful misconduct or recklessness. A person’s conduct with respect
to an employee benefit plan for a purpose which the person reasonably believed
to be in the interests of the participants in and beneficiaries of the plan is
conduct that satisfies the requirements of E.(2)(b).
(3) The
termination of a Proceeding by judgment, order, agreement, or settlement, or
upon conviction or a plea of nolo contendere, or the equivalent of any of the
foregoing, is not, of itself, determinative that the person did not meet the
standard of conduct.
(F) As used
hereinabove with respect to indemnification, the following terms have the
following meanings:
(1) DIRECTOR
means an individual who is or was a director of the
Corporation. “Director” includes the heirs, estate, executors,
administrators, and personal representatives of a Director.
(2) OFFICER means
an individual who is or was an officer of the Corporation. “Officer”
includes the heirs, estate, executors, administrators, and personal
representatives of an Officer.
(3) OFFICIAL
CAPACITY means: (a) when used with respect to a Director, the position of
Director of the Corporation; (b) when used with respect to an Officer, the
office in the Corporation held by an Officer, and (c) when used with respect to
a Director or Officer, any service by a person while a Director or Officer of
the Corporation at the Corporation’s specific request, as a Director, Officer,
partner, trustee, employee, or agent of the Corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise, whether for profit
or not. For these purposes, a person is considered to be serving an
employee benefit plan at the Corporation’s specific request of the person’s
duties to the Corporation also impose duties on, or otherwise involve services
by, such person to the plan or to participants in or beneficiaries of the
plan.
(4) PARTIES means
persons who were, are, or are threatened to be named defendant or respondent in
a Proceeding.
(5) PROCEEDING
means any threatened, pending, or completed action, suit, proceeding, or
appeal therefrom, whether civil, criminal, administrative, regulatory, or
investigative, and whether formal or informal.
(G) The
Corporation reserves the right to purchase and maintain insurance for the
matters covered by these provisions and to the extent of such insurance
payments these provisions shall not be effective.
II-4
|
Item
16. Exhibits
|
|
|
Exhibit
No.
|
Description
|
|
|
4.1
|
Form
of Certificate for the Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, Without Par Value, and With a Liquidation Preference of
$1,000 per share (filed as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K filed on January 23, 2009 and incorporated herein by
reference)
|
|
|
4.2
|
Warrant
for Purchase of Shares of Common Stock (filed as Exhibit 4.2 to the
Registrant’s Current Report on Form 8-K filed on January 23, 2009 and
incorporated herein by reference)
|
|
|
4.3
|
Certificate
of Designations of Fixed Rate Cumulative Preferred Stock, Series A, dated
January 21, 2009 (filed as Exhibit 3.1 to the Registrant’s Current Report
on Form 8-K filed on January 23, 2009 and incorporated herein by
reference)
|
|
|
4.4
|
Letter
Agreement, dated January 23, 2009, between 1st Source Corporation 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 January 23, 2009 and
incorporated herein by reference)
|
|
|
5.1*
|
Opinion
of Barnes & Thornburg LLP
|
|
|
12.1*
|
Computation
of Ratios of Earnings to Fixed Charges for Periods Ended September 30,
2008 and December 31, 2007, 2006, 2005, 2004 and 2003
|
|
|
23.1*
|
Consent
of Ernst & Young LLP
|
|
|
23.2
|
Consent
of Barnes & Thornburg LLP (included in Exhibit 5.1)
|
|
|
24.1*
|
Limited
Power of Attorney
|
* Filed
herewith
|
Item
17.
|
Undertakings
|
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
|
|
(i)
|
To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933;
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of this registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
|
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
|
Provided, however,
That:
II-5
|
|
(1)
|
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are
incorporated by reference in this 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 herein, 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 a 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
the 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 the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
II-6
|
|
(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.
|
|
(b)
|
The
undersigned registrant hereby further undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant’s annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide offering
thereof.
|
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
|
II-7
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
South Bend, State of Indiana, on February 20, 2009.
|
1st
Source Corporation
|
||
|
By:
|
/s/
Christopher J. Murphy III
|
|
|
Christopher
J. Murphy III
|
||
|
Chairman,
President and Chief Executive
Officer
|
||
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 date
indicated.
|
SIGNATURE
|
TITLE(S)
|
DATE
|
|||
|
/s/
Christopher J. Murphy III
|
Chairman,
President and Chief Executive Officer and Director
|
)
)
|
|||
|
Christopher
J. Murphy III
|
)
|
||||
|
)
|
|||||
|
/s/
Larry E. Lentych
|
Treasurer
and Chief Financial Officer
|
)
|
|||
|
Larry
E. Lentych
|
)
|
||||
|
)
|
|||||
|
/s/
Daniel B. Fitzpatrick
|
Director
|
)
|
|||
|
Daniel
B. Fitzpatrick
|
)
|
||||
|
)
|
|||||
|
/s/
Terry L. Gerber
|
Director
|
)
|
|||
|
Terry
L. Gerber
|
)
|
||||
|
)
|
|||||
|
/s/ Lawrence
E. Hiler
|
Director
|
)
|
|||
|
Lawrence
E. Hiler
|
)
|
||||
|
)
|
|||||
|
/s/ William
P. Johnson
|
Director
|
)
|
|||
|
William
P. Johnson
|
)
|
||||
|
)
|
|||||
|
/s/ Wellington
D. Jones III
|
Director
|
)
|
February
20, 2009
|
||
|
Wellington
D. Jones III
|
)
|
||||
|
)
|
|||||
|
/s/ Craig
A. Kapson
|
Director
|
)
|
|||
|
Craig
A. Kapson
|
)
|
||||
|
)
|
|||||
|
/s/ Rex
Martin
|
Director
|
)
|
|||
|
Rex
Martin
|
)
|
||||
|
)
|
|||||
|
/s/ Dane
A. Miller
|
Director
|
)
|
|||
|
Dane
A. Miller
|
)
|
||||
|
)
|
|||||
|
/s/ Timothy
K. Ozark
|
Director
|
)
|
|||
|
Timothy
K. Ozark
|
)
|
||||
|
)
|
|||||
|
/s/ John
T. Phair
|
Director
|
)
|
|||
|
John
T. Phair
|
)
|
||||
|
)
|
|||||
|
/s/ Mark
D. Schwabero
|
Director
|
)
|
|||
|
Mark
D. Schwabero
|
)
|
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
4.1
|
Form
of Certificate for the Fixed Rate Cumulative Perpetual Preferred Stock,
Series A, Without Par Value, and With a Liquidation Preference of
$1,000 per share (filed as Exhibit 4.1 to the Registrant’s Current
Report on Form 8-K filed on January 23, 2009 and incorporated herein by
reference)
|
|
|
4.2
|
Warrant
for Purchase of Shares of Common Stock (filed as Exhibit 4.2 to the
Registrant’s Current Report on Form 8-K filed on January 23, 2009 and
incorporated herein by reference)
|
|
|
4.3
|
Certificate
of Designations of Fixed Rate Cumulative Preferred Stock, Series A, dated
January 23, 2009 (filed as Exhibit 3.1 to the Registrant’s Current Report
on Form 8-K filed on January 23, 2009 and incorporated herein by
reference)
|
|
|
4.4
|
Letter
Agreement, dated January 23, 2009, between 1st Source Corporation 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 January 23, 2009 and
incorporated herein by reference)
|
|
|
5.1*
|
Opinion
of Barnes & Thornburg LLP
|
|
|
12.1*
|
Computation
of Ratios of Earnings to Fixed Charges for Periods Ended December 31,
2008, 2007, 2006, 2005 and 2004
|
|
|
23.1*
|
Consent
of Ernst & Young LLP
|
|
|
23.2
|
Consent
of Barnes & Thornburg LLP (included in Exhibit 5.1)
|
|
|
24.1*
|
Limited
Power of Attorney
|
* Filed
herewith.
E-1