<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 17, 1999.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMMERCIAL BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
OHIO 34-1787239
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
118 SANDUSKY AVENUE
UPPER SANDUSKY, OHIO 43351
(419) 294-5781
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
COMMERCIAL SAVINGS BANK
DEFERRED COMPENSATION PLAN
(Full Title of Plan)
David J. Browne, Esq.
Staff Counsel for Registrant
Commercial Bancshares, Inc.
118 S. Sandusky Avenue
Upper Sandusky, Ohio 43351
(419) 294-5781
(Name, Address and Telephone number of
Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------- ----------------- ----------------------- ------------------------ ---------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF REGISTRATION FEE
TO BE REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING
REGISTERED PRICE
- ------------------------- ----------------- ----------------------- ------------------------ ---------------------------
<S> <C> <C> <C> <C>
Common Stock(1) 6,475 $30.875(2) $199,916 $55.60
----- -------- --------
- ------------------------- ----------------- ----------------------- ------------------------ ---------------------------
</TABLE>
- ----------------------------
1. Pursuant to Rule 416(b), this Registration Statement on Form S-8 shall also
be deemed to register an indeterminate amount of participation interests in
the Deferred Compensation Plan.
2. Inserted solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). Pursuant to Rule 457(c), the fee is calculated on
the basis of the average of the bid and ask price as quoted by the
Company's market makers on March 12, 1999.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Note: The documents containing the information concerning the
Commercial Savings Bank Deferred Compensation Plan (the "Plan") required
by Item 1 of Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), and the statement of availability of the registrant
information, and other information required by Item 2 of Form S- 8 will be sent
or given to participants as specified in Securities Act Rule 428. In accordance
with Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this registration statement on Form S-8 or as prospectuses or
prospectus supplements pursuant to Rule 424. Commercial Bancshares, Inc. (the
"Company") will maintain a file of such documents in accordance with the
provisions of Rule 428. Upon request, the Company shall furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents filed by the Company with the Commission:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters
ended March 31, 1998, June 30, 1998, and September 30, 1998.
(c) The Company's Form 8-K dated April 16, 1998 relating to events
occurring at the Company's Annual Meeting of Shareholders on April 8,
1998.
(d) The Company's Form 8-K dated February 9, 1999 relating to
regulatory approval of the Bank's acquisition of Advantage Finance,
Inc., a wholly-owned finance company, and regulatory approval of a new
branch office in Marion, Ohio.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 3(c), 14, and 15(d) of the Securities Act of 1934, as amended
(the "Exchange Act") subsequent to the date of this Registration Statement, but
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
registers all such securities then remaining unsold, shall be deemed to be
incorporated in
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this registration Statement by reference and to be a part hereof from the date
of filing such documents.
Any statement contained in this Registration Statement, in a supplement
to this Registration Statement or in documents incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any document
that is subsequently incorporated by reference herein modifies such statement.
Any statement so modified or superseded shall not be deemed, except as to
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered under this
Registration Statement is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Shumaker, Loop & Kendrick, LLP, as legal counsel to the Company, is
giving an opinion as to the validity of the securities offered under this
Registration Statement. Edwin G. Emerson, Esq., a partner of Shumaker, Loop &
Kendrick, LLP, serves as a director of the Company and is the beneficial owner
of 2,370 shares of Common Stock of the Company as of March 1, 1999. Mr.
Emerson's spouse, Barbara K. Emerson, is a general partner of Myers Properties
Limited Partnership, which owns 61,716 shares of Common Stock of the Company.
Mr. Emerson disclaims beneficial ownership of the shares held by the
partnership.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Code of Regulations (the "Regulations") provides for the
indemnification of Directors and Officers by the Company against any cost or
expense, reasonably incurred by him or her in connection with any threatened,
pending, or completed action, suit or proceeding by reason of such or any
service to the Company or for service at the request of the Company as a
Director, Trustee, Officer, Employee or Agent of any other corporation,
partnership, joint venture, trust or other enterprise. This indemnification
includes the advancement of expenses including attorneys' fees incurred in
defending any such action, suit or proceeding to the full extent permitted by
Ohio General Corporation Law. The Company and its Directors and Officers shall
be fully protected in taking any action or making any payment under this
section, or in refusing to do so, in reliance upon the advice of counsel. The
Board of Directors is empowered to authorize the Company to purchase and
maintain insurance against liability on behalf of any Director, Officer,
Employee or Agent of the company to the full extent permitted by law.
Insofar as indemnification for liabilities 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 payment by the registrant of expenses incurred or
paid by a director, officer, or
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------ -------------------
4.1 Commercial Savings Bank Deferred Compensation Plan.
5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the
securities being registered.
23.1 Consent of Shumaker, Loop & Kendrick, LLP, to the use of its opinion as
an Exhibit to this Registration Statement is included in his opinion
filed herewith as Exhibit 5.1.
23.2 Consent of Crowe, Chizek and Company LLP.
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) 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 thereto)
which, individually or in the aggregate,
represents a fundamental change in the
formation set forth in the registration
statement.
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(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.
(b) 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.
(c) 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.
2. The undersigned Company hereby undertakes to deliver or cause to be
delivered with the Prospectus to each eligible employee or director to whom the
Prospectus is sent or given, a copy of the Company's Annual Report to
Stockholders for its last fiscal year, unless such individual otherwise has
received a copy of such Annual Report, in which case the Company shall state in
the Prospectus that it will promptly furnish, without charge, a copy of such
Annual Report on written notice of the individual. If the last fiscal year of
the Company has ended within 120 days prior to the use of the Prospectus, the
Annual Report of the Company for the preceding fiscal year may be so delivered,
but within such 120 day period the Annual Report for the last fiscal year will
be furnished to each such individual.
The Company also undertakes to deliver or cause to be delivered to all
employees or directors participating in the Company's Deferred Compensation Plan
who do not otherwise receive such material, copies of all reports to
stockholders, proxy statements and other communications distributed to its
security holders generally, such material to be sent or delivered no later than
the time it is sent to security holders.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing Form S-8 and has duly caused this registration statement
to be singed on its behalf by the undersigned, thereunto duly authorized, in the
City of Upper Sandusky, State of Ohio this 10th day of March, 1999.
Commercial Bancshares, Inc.
By: //s//Raymond E. Graves
----------------------------------------------
Raymond E. Graves, Chief Executive Officer
By: //s//James A. Deer
----------------------------------------------
James A. Deer, Secretary
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of Commercial Bancshares, Inc., hereby constitutes and appoints
Raymond E. Graves, Chief Executive Officer of the Company, and Alicia A.
Wagenblast, Chief Financial Officer of the Company , or either of them
individually, his true and lawful attorney-in-fact and agent, for him and in his
name, place and stead, in any and all capacities, to sign his name to a
Registration Statement on Form S-8 relating to the registration under the
Securities Act of 1933 of the shares of the Company's common stock to be offered
under the Commercial Bancshares, Inc. Deferred Compensation Plan, and to any and
all amendments to such Registration Statement on Form S-8, including
post-effective amendments and other related documents, and to cause the same to
be filed with the Securities and Exchange Commission, granting unto said
attorneys, or either of them individually, full power and authority to do and
perform any act and thing necessary and proper to be done in the premises, as
fully to all intents and purposes as the undersigned could do if personally
present, and the undersigned for himself hereby ratifies and confirms all that
said attorneys shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this S-8
Registration Statement has been signed by the following persons (or by their
duly authorized attorney-in-fact) in the capacities and on the dates indicated.
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
//s//Richard A. Sheaffer Chairman of the Board March 10, 1999
- ------------------------------------------------------
Richard A. Sheaffer
//s//Raymond E. Graves President and Chief Executive March 10, 1999
- ------------------------------------------------------
Raymond E. Graves Officer
//s//James A. Deer Secretary and Director March 10, 1999
- ------------------------------------------------------
James A. Deer
//s//Alicia A. Wagenblast Chief Financial Officer March 10, 1999
- ------------------------------------------------------
Alicia A. Wagenblast
//s//Daniel E. Berg Director March 10, 1999
- ------------------------------
Daniel E. Berg
//s//Loren H. Dillon Director March 10, 1999
- ------------------------------
Loren H. Dillon
//s//Mark Dillon Director March 10, 1999
- ------------------------------
Mark Dillon
//s//Edwin G. Emerson Director March 10, 1999
- ------------------------------
Edwin G. Emerson
//s//Hazel D. Franks Director March 10, 1999
- ------------------------------
Hazel D. Franks
//s//Deborah J. Grafmiller Director March 10, 1999
- ------------------------------
Deborah J. Grafmiller
//s//Michael A. Mastro Director March 10, 1999
- ------------------------------
Michael A. Mastro
//s//William E. Ruse Director March 10, 1999
- ------------------------------
William E. Ruse
//s//Douglas C. Smith Director March 10, 1999
- ------------------------------
Douglas C. Smith
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------ -------------------
4.1 Commercial Savings Bank Deferred Compensation Plan.
5.1 Opinion of Shumaker, Loop & Kendrick, LLP, as to the legality of the
securities being registered.
23.1 Consent of Shumaker, Loop & Kendrick, LLP, to the use of their opinion
as an exhibit to this Registration Statement is included in their
opinion filed herewith as Exhibit 5.1.
23.2 Consent of Crowe, Chizek and Company, L.L.P.
<PAGE> 1
EXHIBIT 4.1
COMMERCIAL BANCSHARES, INC.
THE MERRILL LYNCH SPECIAL NONQUALIFIED
DEFERRED COMPENSATION PLAN
<PAGE> 2
ARTICLE 1
INTRODUCTION
1.1 PURPOSE OF PLAN
The Employer has adopted the Plan set forth herein to provide a means
by which certain employees may elect to defer receipt of designated percentages
or amounts of their Compensation and to provide a means for certain other
deferrals of Compensation.
1.2 Status of Plan
The Plan is intended to be "a plan that is unfunded and is maintained
by an employer primarily for the purpose of providing deferred compensation for
a select group of management or highly compensated employees" within the meaning
of Sections 201(2) and 301(a)(3) of the Employee Retirement Income Security Act
of 1974 ("ERISA"), and shall be interpreted and administered to the extent
possible in a manner consistent with that intent.
ARTICLE 2
DEFINITIONS
Wherever used herein, the following terms have the meanings
set forth below, unless a different meaning is clearly required by the context:
2.1 ACCOUNT means, for each Participant, the account established for his or her
benefit under Section 5.1.
2.2 ADOPTION AGREEMENT means the Merrill Lynch Special Nonqualified Deferred
Compensation Plan for Select Employees Adoption Agreement signed by the Employer
to establish the Plan and containing all the options selected by the Employer,
as the same may be amended from time to time.
2.3 CHANGE OF CONTROL means (a) the purchase or other acquisition in one or more
transactions other than from the Employer, by any individual, entity or group of
persons, within the meaning of section 13(d)(3) or 14(d) of the Securities
Exchange Act of 1934 or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 of Securities Exchange Act of 1934)
of 30% or more of either the outstanding shares of common stock or the combined
voting power of the Employer's then outstanding voting securities entitled to
vote generally, or (b) the approval by the stockholders of the Employer of a
reorganization, merger, or consolidation, in each case, with respect to which
persons who were stockholders of the Employer immediately prior to such
reorganization, merger or consolidation do not immediately thereafter own more
than 50% of the combined voting power of the reorganized,
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merged or consolidated Employer's then outstanding securities that are entitled
to vote generally in the election of directors, or (c) the sale of substantially
all of the Employer's assets.
2.4 CODE means the Internal Revenue Code of 1986, as amended from time to time.
Reference to any section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation that amends, supplements
or replaces such section or subsection.
2.5 COMPENSATION has the meaning elected by the Employer in the Adoption
Agreement.
2.6 EFFECTIVE DATE means the date chosen in the Adoption Agreement as of which
the Plan first becomes effective.
2.7 ELECTION FORM means the participation election form as approved and
prescribed by the Plan Administrator.
2.8 ELECTIVE DEFERRAL means the portion of Compensation that is deferred by a
Participant under Section 4.1.
2.9 ELIGIBLE EMPLOYEE means, on the Effective Date or any Entry Date thereafter,
each employee of the Employer who satisfies the criteria established in the
Adoption Agreement.
2.10 EMPLOYER means the corporation referred to in the Adoption Agreement, any
successor to all or a major portion of the Employer's assets or business that
assumes the obligations of the Employer, and each other entity that is
affiliated with the Employer, which adopts the Plan with the consent of the
Employer, provided that the Employer that signs the Adoption Agreement shall
have the sole power to amend this Plan and shall be the Plan Administrator if no
other person or entity is so serving at any time.
2.11 ERISA means the Employee Retirement Income Security Act of 1974, as amended
from time to time. Reference to any section or subsection of ERISA includes
reference to any comparable or succeeding provisions of any legislation that
amends, supplements or replaces such section or subsection.
2.12 INCENTIVE CONTRIBUTION means a discretionary additional contribution made
by the Employer as described in Section 4.3.
2.13 INSOLVENT means either (i) the Employer is unable to pay its debts as they
become due, or (ii) the Employer is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
2.14 MATCHING DEFERRAL means a deferral for the benefit of a Participant as
described in Section 4.2.
2.15 PARTICIPANT means any individual who participates in the Plan in accordance
with Article 3.
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2.16 PLAN means the Employer's plan in the form of the Merrill Lynch Special
Nonqualified Deferred Compensation Plan for Select Employees and the Adoption
Agreement and all amendments thereto.
2.17 PLAN ADMINISTRATOR means the person, persons or entity designated by the
Employer in the Adoption Agreement to administer the Plan and to serve as the
agent for the "Company" with respect to the Trust as contemplated by the
agreement establishing the Trust. If no such person or entity is so serving at
any time, the Employer shall be the Plan Administrator.
2.18 PLAN YEAR means the 12-month period chosen in the Adoption Agreement.
2.19 TOTAL AND PERMANENT DISABILITY means the inability of a Participant to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months, and the permanence and degree of which shall be
supported by medical evidence satisfactory to the Plan Administrator.
2.20 TRUST means the trust established by the Employer that identifies the Plan
as a plan with respect to which assets are to be held by the Trustee.
2.21 TRUSTEE means the trustee or trustees under the Trust.
2.22 YEAR OF SERVICE means the computation period and service requirement
elected in the Adoption Agreement.
ARTICLE 3
PARTICIPATION
3.1 Commencement of Participation
Any individual who elects to defer part of his or her Compensation in
accordance with Section 4.1 shall become a Participant in the Plan as of the
date such deferrals commence in accordance with Section 4.1. Any individual who
is not already a Participant and whose Account is credited with an Incentive
Contribution shall become a Participant as of the date such amount is credited.
3.2 Continued Participation
A Participant in the Plan shall continue to be a Participant so long as
any amount remains credited to his or her Account.
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ARTICLE 4
ELECTIVE AND MATCHING DEFERRALS
4.1 Elective Deferrals
An individual who is an Eligible Employee on the Effective Date may, by
completing an Election Form and filing it with the Plan Administrator within 30
days following the Effective Date, elect to defer a percentage or dollar amount
of one or more payments of Compensation, on such terms as the Plan Administrator
may permit, which are payable to the Participant after the date on which the
individual files the Election Form. Any individual who becomes an Eligible
Employee after the Elective Date may, by completing an Election Form and filing
it with the Plan Administrator within 30 days following the date on which the
Plan Administrator gives such individual written notice that the individual is
an Eligible Employee, elect to defer a percentage or dollar amount of one or
more payments of Compensation, on such terms as the Plan Administrator may
permit, which are payable to the Participant after the date on which the
individual files the Election Form. Any Eligible Employee who has not otherwise
initially elected to defer Compensation in accordance with this paragraph 4.1
may elect to defer a percentage or dollar amount of one or more payments of
Compensation, on such terms as the Plan Administrator may permit, commencing
with Compensation paid in the next succeeding Plan Year, by completing an
Election Form prior to the first day of such succeeding Plan Year. In addition,
a Participant may defer all or part of the amount of any elective deferral or
matching contribution made on his or her behalf to the Employer's 401(k) plan
for the prior Plan Year but treated as an excess deferral, an excess
contribution or otherwise limited by the application of the limitations of
sections 401(k), 401(m), 415 or 402(g) of the Code, so long as the Participant
so indicates on an Election Form. A Participant's Compensation shall be reduced
in accordance with the Participant's election hereunder and amounts deferred
hereunder shall be paid by the Employer to the Trust as soon as administratively
feasible and credited to the Participant's Account as of the date the amounts
are received by the Trustee.
An election to defer a percentage or dollar amount of Compensation for
any Plan Year shall apply for subsequent Plan Years unless changed or revoked. A
Participant may change or revoke his or her deferral election as of the first
day of any Plan Year by giving written notice to the Plan Administrator before
such first day (or any such earlier date as the Plan Administrator may
prescribe).
4.2 Matching Deferrals
After each payroll period, monthly, quarterly, or annually, at the
Employer's discretion, the Employer shall contribute to the Trust Matching
Deferrals equal to the rate of Matching Contribution selected by the Employer
and multiplied by the amount of the Elective Deferrals credited to the
Participants' Accounts for such period under Section 4.1. Each Matching Deferral
will be credited, as of the later of the date it is received by the Trustee or
the date the Trustee receives from the Plan Administrator such instructions as
the Trustee may reasonably require to allocate the amount received among the
asset accounts maintained by the Trustee, to
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the Participants' Accounts pro rata in accordance with the amount of Elective
Deferrals of each Participant, which are taken into account in calculating the
Matching Deferral.
4.3 Incentive Contributions
In addition to other contributions provided for under the Plan, the
Employer may, in its sole discretion, select one or more Eligible Employees to
receive an Incentive Contribution to his or her Account on such terms as the
Employer shall specify at the time it makes the contribution. For example, the
Employer may contribute an amount to a Participant's Account and condition the
payment of that amount and accrued earnings thereon upon the Participant
remaining employed by the Employer for an additional specified period of time.
The terms specified by the Employer shall supersede any other provision of this
Plan as regards Incentive Contributions and earnings with respect thereto,
provided that if the Employer does not specify a method of distribution, the
Incentive Contribution shall be distributed in a manner consistent with the
election last made by the particular Participant prior to the year in which the
Incentive Contribution is made. The Employer, in its discretion, may permit the
Participant to designate a distribution schedule for a particular Incentive
Contribution provided that such designation is made prior to the time that the
Employer finally determines that the Participant will receive the Incentive
Contribution.
ARTICLE 5
ACCOUNTS
5.1 Accounts
The Plan Administrator shall establish an Account for each Participant
reflecting Elective Deferrals, Matching Deferrals and Incentive Contributions
made for the Participant's benefit together with any adjustments for income,
gain or loss and any payments for the Account. The Plan Administrator may cause
the Trustee to maintain and invest separate asset accounts corresponding to each
Participant's Account. the Plan Administrator shall establish sub-accounts for
each Participant that has more than one election in effect under Section 7.1 and
such other subaccounts as are necessary for the proper administration of the
Plan. As of the last business day of each calendar quarter, the Plan
Administrator shall provide the Participant with a statement of his or her
Account reflecting the income, gains and losses (realized and unrealized),
amounts of deferrals, and distributions of such Account since the prior
statement.
5.2 Investments
The assets of the Trust shall be invested in such investments as the
Trustee shall determine. The Trustee may (but is not required to) consider the
Employer's or a Participant's investment preferences when investing the assets
attributable to a Participant's Account.
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ARTICLE 6
VESTING
6.1 General
A Participant shall be immediately vested in, i.e., shall have a
nonforfeitable right to, all Elective Deferrals, and all income and gain
attributable thereto, credited to his or her Account. A Participant shall become
vested in the portion of his or her Account attributable to Matching Deferrals
and income and gain attributable thereto in accordance with the schedule
selected by the Employer in the Adoption Agreement, subject to earlier vesting
in accordance with Sections 6.3, 6.4 and 6.5.
6.2 Vesting Service
For purposes of applying the vesting schedule in the Adoption
Agreement, a Participant shall be considered to have completed a Year of Service
for each complete year of full-time service with the Employer or an Affiliate,
measured from the Participant's first date of such employment, unless the
Employer also maintains a 401(k) plan that is qualified under section 401(a) of
the Internal Revenue Code in which the Participant participates, in which case
the rules governing vesting service under that plan shall also be controlling
under this plan.
6.3 Change of Control
A Participant shall become fully vested in his or her Account
immediately prior to a Change of Control of Employer.
6.4 Death or Disability
A Participant shall become fully vested in his or her Account
immediately prior to termination of the Participant's employment by reason of
the Participant's death or Total and Permanent Disability. Whether a
Participant's termination of employment is by reason of the Participant's Total
and Permanent Disability shall be determined by the Plan Administrator in its
sole discretion.
6.5 Insolvency
A Participant shall become fully vested in his or her Account
immediately prior to the Employer becoming insolvent, in which case the
Participant will have the same rights as a general creditor of the Employer with
respect to his or her Account balance.
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ARTICLE 7
PAYMENTS
7.1 Election as to Time and Form of Payment
A Participant shall elect (on the Election Form used to elect to defer
Compensation under Section 4.1) the date at which the Elective Deferrals and
vested Matching Deferrals (including any earnings attributable thereto) will
commence to be paid to the Participant. The Participant shall also elect thereon
for payments to be paid in either:
a. a single lump-sum payment;
b. a series of substantially equal periodic payments (not less
frequently than annually) over a period elected by the participant not
to exceed the life expectancy of the participant (or the joint life
expectancies of the Participant and the designated beneficiary of the
Participant);
c. payments equal to the amounts paid under an annuity chosen by the
Participant that is acceptable to the Trustee;
d. annual installments over a period elected by the Participant, the
amount of each installment to equal the balance of his or her Account
immediately prior to the installment divided by the number of
installments remaining to be paid.
Each such election will be effective for the Plan Year for which it is
made and succeeding Plan Years, unless changed by the Participant. Any change
will be effective only for Elective Deferrals and Matching Deferrals made for
the first Plan Year beginning after the date on which the Election Form
containing the change is filed with the Plan Administrator. Except as provided
in Sections 7.2, 7.3, 7.4, or 7.5, payment of a Participant's Account shall be
made in accordance with the Participant's elections under this Section 7.1.
7.2 Change of Control
As soon as possible following a Change of Control of the Employer, each
Participant shall be paid his or her entire Account balance (including any
amount vested pursuant to Section 6.3) in a single lump sum.
7.3 Termination of Employment
Upon termination of a Participant's employment for any reason other
than death and prior to the attainment of the Retirement Age specified in the
Adoption Agreement, the vested portion of the Participant's Account (including
any portion vested pursuant to Section 6.4 as a consequence of the Participant's
Total and Permanent Disability) shall be paid to the Participant in a single
lump sum as soon as practicable following the date of such termination;
provided,
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however, that the Plan Administrator, in its sole discretion, may pay
out a Participant's Account balance in annual installments if the Participant's
employment terminates by reason of the Participant's Total and Permanent
Disability.
7.4 Death
If a Participant dies prior to the complete distribution of his or her
Account, the balance of the Account shall be paid as soon as practicable to the
Participant's designated beneficiary or beneficiaries, in accordance with the
payment election in effect under Section 7.1 on the date of the Participant's
death. Alternatively, Participant may elect that the balance of the Account be
paid to the Participant's beneficiary or beneficiaries.
Any designation of beneficiary and form of payment to such beneficiary
shall be made by the Participant on an Election Form filed with the Plan
Administrator and may be changed by the Participant at any time by filing
another Election Form containing the revised instructions. If no beneficiary
survives the Participant, payment shall be made to the Participant's surviving
spouse, or, if none, to his or her issue per stirpes, in a single payment. If no
spouse or issue survives the Participant, payment shall be made in a single lump
sum to the Participant's estate.
7.5 Unforeseen Emergency
If a Participant suffers an unforeseen emergency, as defined herein,
the Plan Administrator, in its sole discretion, may pay to the Participant only
that portion, if any, or the vested portion of his or her Account that the Plan
Administrator determines is necessary to satisfy the emergency need, including
any amounts necessary to pay any federal, state or local income taxes reasonably
anticipated to result from the distribution. A Participant requesting an
emergency payment shall apply for the payment in writing in a form approved by
the Plan Administrator and shall provide such additional information as the Plan
Administrator may require. For purposes of this paragraph, "unforeseen
emergency" means an immediate and heavy financial need resulting from any of the
following:
a. expenses that are not covered by insurance and which the Participant
or his or her spouse or dependent has incurred as a result of, or is
required to incur in order to receive, medical care;
b. the need to prevent eviction of a Participant from his or her
principal residence or foreclosure on the mortgage of the Participant's
principal residence; or
c. any other circumstance that is determined by the Plan Administrator
in its sole discretion to constitute an unforeseen emergency that is
not covered by insurance and which cannot reasonably be relieved by the
liquidation of the Participant's assets.
7.6 FORFEITURE OF NON-VESTED AMOUNTS
To the extent that any amounts credited to a Participant's Account are
not vested at the time such amounts are otherwise payable under Section 7.1 or
7.3, such amounts shall be
8
<PAGE> 10
forfeited and shall be used to satisfy the Employer's obligation to make
contributions to the Trust under the Plan.
7.7 TAXES
All federal, state or local taxes that the Plan Administrator
determines are required to be withheld from any payments made pursuant to this
Article 7 shall be withheld.
ARTICLE 8
PLAN ADMINISTRATOR
8.1 Plan Administration and Interpretation
The Plan Administrator shall oversee the administration of the Plan.
The Plan Administrator shall have complete control and authority to determine
the rights and benefits and all claims, demands and actions arising out of the
provisions of the Plan of any Participant, beneficiary, deceased Participant, or
other person having or claiming to have any interest under the Plan. The Plan
Administrator shall have complete discretion to interpret the Plan and to decide
all matters under the Plan. Such interpretation and decision shall be final,
conclusive and binding on all Participants and any person claiming under or
through any Participant, in the absence of clear and convincing evidence that
the Plan Administrator acted arbitrarily and capriciously. Any individual(s)
serving as Plan Administrator who is a Participant will not vote or act on any
matter relating solely to himself or herself. When making a determination or
calculation, the Plan Administrator shall be entitled to rely on information
furnished by a Participant, a beneficiary, the Employer or the Trustee. The Plan
Administrator shall have the responsibility for complying with any reporting and
disclosure requirements of ERISA.
8.2 POWERS, DUTIES, PROCEDURES, ETC.
The Plan Administrator shall have such powers and duties, may adopt
such rules and tables, may act in accordance with such procedures, may appoint
such officers or agents, may delegate such powers and duties, may receive such
reimbursements and compensation, and shall follow such claims and appeal
procedures with respect to the Plan as it may establish.
8.3 INFORMATION
To enable the Plan Administrator to perform its functions, the Employer
shall supply full and timely information to the Plan Administrator on all
matters relating to the compensation of Participants, their employment,
retirement, death, termination of employment, and such other pertinent facts as
the Plan Administrator may require.
9
<PAGE> 11
8.4 INDEMNIFICATION OF PLAN ADMINISTRATOR
The Employer agrees to indemnify and to defend to the fullest extent
permitted by law any officer(s) or employee(s) who serve as Plan Administrator
(including any such individual who formerly served as Plan Administrator)
against all liabilities, damages, costs and expenses (including attorneys' fees
and amounts paid in settlement of any claims approved by the Employer)
occasioned by any act or omission to act in connection with the Plan, if such
act or omission is in good faith.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 AMENDMENTS
The Employer shall have the right to amend the Plan from time to time,
subject to Section 9.3, by an instrument in writing that has been executed on
the Employer's behalf by its duly authorized officer.
9.2 TERMINATION OF PLAN
This Plan is strictly a voluntary undertaking on the part of the
Employer and shall not be deemed to constitute a contract between the Employer
and any Eligible Employee (or any other employee) or a consideration for, or an
inducement or condition of employment for, the performance of the services by
any Eligible Employee (or other employee). The Employer reserves the right to
terminate the Plan at any time, subject to Section 9.3, by an instrument in
writing that has been executed on the Employer's behalf by its duly authorized
officer. Upon termination, the Employer may (a) elect to continue to maintain
the Trust to pay benefits hereunder as they become due as if the Plan had not
terminated or (b) direct the Trustee to pay promptly to Participants (or their
beneficiaries) the vested balance of their Accounts. For purposes of the
preceding sentence, in the event the Employer chooses to implement clause (b),
the Account balances of all Participants who are in the employ of the Employer
at the time the Trustee is directed to pay such balances shall become fully
vested and nonforfeitable. After Participants and their beneficiaries are paid
all Plan benefits to which they are entitled, all remaining assets of the Trust
attributable to Participants who terminated employment with the Employer prior
to termination of the Plan and who were not fully vested in their Accounts under
Article 6 at that time shall be returned to the Employer.
9.3 EXISTING RIGHTS
No amendment or termination of the Plan shall adversely affect the
rights of any Participant with respect to amounts that have been credited to his
or her Account prior to the date of such amendment or termination.
10
<PAGE> 12
ARTICLE 10
MISCELLANEOUS
10.1 NO FUNDING
The Plan constitutes a mere promise by the Employer to make payments in
accordance with the terms of the Plan and Participants and beneficiaries shall
have the status of general unsecured creditors of the Employer. Nothing in the
Plan will be construed to give any employee or any other person rights to any
specific assets of the Employer or of any other person. In all events, it is the
intent of the Employer that the Plan be treated as unfunded for tax purposes and
for purposes of Title 1 of ERISA.
10.2 NON-ASSIGNABILITY
None of the benefits, payments, proceeds or claims of any Participant
or beneficiary shall be subject to any claim of any creditor of any Participant
or beneficiary and, in particular, the same shall not be subject to attachment
or garnishment or other legal process by any creditor of such Participant or
beneficiary, nor shall any participant or beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or
payment or proceeds that he or she may expect to receive, contingently or
otherwise, under the Plan.
10.3 LIMITATION OF PARTICIPANTS' RIGHTS
Nothing contained in the Plan shall confer upon any person a right to
be employed or to continue in the employ of the Employer, or interfere in any
way with the right of the Employer to terminate the employment of a Participant
in the Plan at any time, with or without cause.
10.4 PARTICIPANTS BOUND
Any action with respect to the Plan taken by the Plan Administrator or
the Employer or the Trustee or any action authorized by or taken at the
direction of the Plan Administrator, the Employer or the Trustee shall be
conclusive upon all Participants and beneficiaries entitled to benefits under
the Plan.
10.5 RECEIPT AND RELEASE
Any payment to any Participant or beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against the Employer, the Plan Administrator and the Trustee under
the Plan, and the Plan Administrator may require such Participants or
beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect. If any Participant or beneficiary is determined by the
Plan Administrator to be incompetent by reason of physical or mental disability
(including minority) to give a valid receipt and release, the Plan Administrator
may cause the payment or payments becoming due to
11
<PAGE> 13
such person to be made to another person for his or her benefit without
responsibility on the part of the Plan Administrator, the Employer or the
Trustee to follow the application of such funds.
10.6 GOVERNING LAW
The Plan shall be construed, administered, and governed in all respects
under and by the laws of the state in which the Employer maintains its primary
place of business. If any provision shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions hereof
shall continue to be fully effective.
10.7 HEADINGS AND SUBHEADINGS
Headings and subheadings in this Plan are inserted for convenience only
and are not to be considered in the construction of the provisions hereof.
12
<PAGE> 14
THE MERRILL LYNCH SPECIAL NONQUALIFIED DEFERRED
COMPENSATION PLAN ADOPTION AGREEMENT
------------------------------------
Please complete the information requested in the Adoption Agreement to
establish the specific provisions of your plan. You do not have to provide a
copy to your Financial Consultant. (Only the Merrill Lynch account opening
agreements and an original executed copy of the associated Trust Agreement need
to be returned to Merrill Lynch at the address printed on those forms.) This
document and the Merrill Lynch Special Nonqualified Deferred Compensation Plan
for Select Employees govern the rights of plan participants and should,
therefore, be disclosed to participants and retained as part of your permanent
records.
<TABLE>
<CAPTION>
1. EMPLOYER INFORMATION
<S> <C>
A. Name of Plan: Commercial Savings Bank Deferred
Compensation Program
B. Name and Address of employer sponsoring Commercial Bancshares, Inc.
the Plan. Please provide employer's business 118 S. Sandusky Avenue
name: Upper Sandusky, Ohio 43351
C. Provide employer's primary contact for the Raymond E. Graves
Plan and telephone and FAX numbers. Also, President & CEO
include the employer's Tax Identification Number: 419-294-5781
419-294-2350 (fax)
Employer Tax Identification Number: 34-1787239
D. Give the first day of the 12-month period 1/1
for which the employer pays taxes: ---
2. PLAN INFORMATION
A. What is the effective date of the Plan? 01/01/99
--------
B. Plan Year Ends. Your "Plan Year" is the 12-consecutive-month period
for which you credit elective and matching deferrals and keep Plan
records. Enter the last day of your Plan Year. For example, if you use
the calendar year as your plan year, enter "December 31." If you use a
different 12-month period - for instance if your business is on a
fiscal year - enter the last day of your fiscal year, e.g. "July 31." December 31
-----------
</TABLE>
<PAGE> 15
3. ELIGIBLE EMPLOYEES
The following persons or classes of persons shall be Participants
(enter the names or positions of individuals eligible to participate or the
criteria used to identify Participants, e.g., "Those key employees of the
Company selected by the Compensation Committee of the Board of Directors").
Members of the Board of Directors and executive officers
--------------------------------------------------------
designated by the Compensation Committee of the Board of Directors.
-------------------------------------------------------------------
4. COMPENSATION
Compensation is used to determine the amount of Elective Deferrals a
Participant can elect. Compensation under the Plan is defined as (select one):
[X] the Participant's wages, salaries, fees for professional services and
other amounts received (without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the course of employment with
the Employer or an Affiliate to the extent that the amounts are includable in
gross income, including but not limited to commissions paid to salesmen,
compensation for services on the basis of percentage of profits, commissions on
insurance premiums, tips, bonuses, fringe benefits, reimbursements, and expense
allowances, but not including those items excludable from the definition of
compensation under Treas. Reg. section 1.415-2(d)(3).
[ ] the regular or base salary payable to the individual by the Employer or
an Affiliate, excluding commissions and bonuses.
[ ] the cash compensation payable to the individual by the Employer
or an Affiliate, including any commissions and bonuses.
[ ] the cash bonuses payable to the individual by the Employer or an
Affiliate.
For purposes of the Plan, Compensation will be determined before giving
effect to Elective Deferrals and other salary reduction amounts that are not
included in the Participant's gross income under Code section 125, 401(k),
402(h) or 403(b).
5. CONTRIBUTIONS
A. ELECTIVE DEFERRALS. Participants may elect to reduce their Compensation and
to have Elective Deferrals credited to their Accounts by making an election
under the Plan (which may be changed each year for later Plan Years as described
in the plan), but no Participant may defer more than 100 % (1%-100%) of his or
-----
her Compensation for a Plan Year.
B. MATCHING DEFERRALS. If the Employer elects to match Elective Deferrals,
specify the matching rate and indicate the amount of the Participant's Elective
Deferrals that will be
2
<PAGE> 16
matched. You may also elect to decide each year whether Matching Deferrals will
be made and, if so, what that year's matching rate will be.
For example, the Employer may decide to credit a Matching
Deferral of, for example, 50 cents for each dollar of a Participant's Elective
Deferrals, but limit the match to the first 5% of Compensation deferred by the
Participant. If you want to set a maximum dollar amount on the amount of
Elective Deferrals that will be matched, insert the dollar amount and interval
over which the amount is to be measured. For example, you could say that you
will not match Elective Deferrals in excess of $1,000 per month. Matching
Deferrals can be made after each payroll period, monthly, quarterly, or
annually, at the Employer's discretion. Matching Deferrals will be subject to
the vesting schedule selected in Item 6A (select one):
[ ] No Matching Deferrals will be credited.
The Employer will credit Matching Deferrals for each Participant equal
to _____% of the first _____% of the Participant's Compensation which is elected
as an Elective Deferral, but no Matching Deferral will be made on Elective
Deferrals in excess of $__________ per (specify time period if applicable).
____________________
[X] The Employer will decide from year to year whether Matching Deferrals
will be made and will notify Participants annually of the manner in which
Matching Deferrals will be calculated for the subsequent year.
C. Discretionary Incentive Contributions. The Employer may make Discretionary
Incentive Contributions in any amounts the Employer selects. These contributions
will be subject to the vesting schedule selected in Item 6C.
The Employer will make Discretionary Incentive Contributions under
the Plan.
[ X ]Yes [ ]No
6. VESTING OF MATCHING DEFERRALS AND DISCRETIONARY INCENTIVE CONTRIBUTIONS
A. Vesting Schedule for Matching Deferrals.
----------------------------------------
Indicate how the portion of a Participant's Account attributable to Matching
Deferrals is to vest.
Matching Deferrals vest in accordance with the following schedule
(select one):
[ ] 100% immediate.
[ ] 100% after _____ years of service.
[ ] 20% after _____ years of service and an additional 20% for
each year thereafter.
[ X] Other vesting schedule (specify):
------------------------
3
<PAGE> 17
B. Vesting Service.
----------------
Indicate whether you will give credit for vesting service for time spent with a
predecessor employer, and if so, specify the maximum number of years and the
type of predecessor service for which credit will be given. For vesting purposes
(select one):
[ ] Service with a predecessor employer will not be considered.
[ ] Service (up to a maximum of _____ years) with the following
employer(s) will be considered.
------------------------
C. Vesting Schedule for Discretionary Incentive Contributions.
-----------------------------------------------------------
Indicate how the portion of a Participant's Account attributable to
Discretionary Incentive Contributions is to vest.
Unless otherwise specified by the Employer at the time a Discretionary Incentive
Contribution is made, Discretionary Incentive Contributions vest in accordance
with the following schedule (select one):
[ ] 100% immediate.
[ ] 100% after _____ years of service.
[ ] 20% after _____ years of service and an additional 20% for
each year thereafter.
[ X] Other vesting schedule (specify):
----------------------------
7. ACCOUNTS
The Trustee can either invest each Participant's Account balance as a
separate account (in which case the Trustee, could, but would not be required
to, take into consideration the investment preferences of the Participants) or
invest the Account balances of all Participants as a single fund (in which case
the Trustee could, but would not be required to, take into consideration the
investment preference of the Employer) (select one):
[ ] Account balances are to be invested separately.
[ X] Account balances are to be invested as a single fund.
8. RETIREMENT AGE
The Retirement Age under the Plan is age 70 . A Participant terminating
employment before Retirement Age for reasons other than death or Total and
Permanent Disability will not be entitled to receive any installment payments
elected to the Election Form.
4
<PAGE> 18
9. WITHDRAWALS WHILE WORKING
Withdrawals for Unforeseen Emergency. If you check the first box,
Participants may make withdrawals while working in the event they encounter an
unforeseen emergency. They generally can withdraw the vested portion of their
Accounts.
NOTE: Withdrawals are strictly limited as described in Plan Section
7.5. It is the Plan Administrator's responsibility to ensure that the limits are
being followed. Excess withdrawals may result in loss of the tax deferral on all
amounts credited under the Plan for the benefit of all Participants.
Withdrawals of the vested portion of a Participant's Account for
unforeseen emergencies (select one):
[ ] Are permitted to the full extent allowable under the plan.
[ ] Are not permitted.
10. ADMINISTRATION
Plan Administrator. The Plan Administrator is legally responsible for
the operation of the Plan, including:
- Keeping track of which employees are eligible to participate in
the Plan and the date each employee becomes eligible to participate.
- Maintaining Participant's Accounts, including all
sub-accounts required for different contribution types and payment
elections, keeping track of all elections made by Participants under
the Plan and any other relevant information.
- Transmitting important communications to the Participants,
and obtaining relevant information from Participants such as changes in
investment selections.
- Filing important reports required to be submitted to governmental
agencies.
The Plan Administrator will be the person or persons identified below:
Name: Title:
----- ------
Raymond E. Graves CEO & President
------------------------- -----------------------
Philip W. Kinley Vice President
------------------------- -----------------------
------------------------- -----------------------
------------------------- -----------------------
5
<PAGE> 19
11. SIGNATURES
After reviewing the Adoption Agreement, enter the current date and the
name of the Employer. The signature of the Employer or the person signing for
the Employer must be witnessed. Note that the person signing for the Employer
must be authorized to do so, such as by a resolution of the Employer's board of
directors or governing by-laws.
While the Merrill Lynch Special Nonqualified Deferred Compensation Plan
for Select Employees, including this Adoption Agreement, has been designed in a
manner to permit Participants to defer federal income tax on amounts credited to
their accounts until the amounts are actually paid, neither Merrill Lynch,
Pierce, Fenner & Smith Incorporated, the sponsor of this document, nor any of
its affiliates ("Merrill Lynch") provide any assurances of that result in the
Employer's particular situation or assume any responsibility in this regard.
Please consult your tax advisor regarding the tax consequences of this
Plan to you and your employees and the advisability of submitting this document
to the Internal Revenue Service to obtain a ruling concerning those
consequences. In addition, please consult your independent legal counsel with
respect to securities law issues. By signing this Adoption Agreement the
Employer acknowledges that no representations or warranties as to the tax
consequences to the Employer and Participants of the operation of this Plan have
been made by Merrill Lynch.
Commercial Bancshares, Inc.
--------------------------------
Name of Employer
WITNESS: By: //s// Raymond E. Graves
-----------------------------
Title: President and CEO
---------------------
//s// Philip W. Kinley Date: December 8, 1998
- ------------------------- ----------------------------
Signature
6
<PAGE> 1
Exhibit 5.1
March 17, 1999
Commercial Bancshares, Inc.
118 S. Sandusky Avenue
Upper Sandusky, Ohio 43351
Re: Registration Statement on Form S-8 for the Commercial Savings Bank
Deferred Compensation Plan
Sir or Madam:
We have assisted Commercial Bancshares, Inc. (the "Company") with the
preparation and filing of its Registration Statement on Form S-8 with the
Securities and Exchange Commission pursuant to the requirements of the
Securities Act of 1933, as amended, for the registration of shares of the common
stock of the Company, without par value (the "Shares"), issuable pursuant to the
Company's Deferred Compensation Plan (the "Plan").
In connection with the following opinion, we have examined and have
relied upon such documents , corporate records, certificates, statements and
instruments as we have deemed necessary and appropriate to render the opinion
herein set forth, prepared. We have assumed, with your permission, that all
stock certificates representing the Shares will be prepared, executed by
appropriate officers, and delivered in a manner consistent with the Company's
Articles and Code of Regulations.
Based upon the foregoing, it is our opinion that when shares are
delivered to the trust created under the Plan in a manner consistent with the
terms of the Plan, the Shares will be validly authorized and issued, fully paid
and nonassessable.
In addition, we note that the Plan is an unfunded "top-hat" plan
maintained primarily to provide deferred compensation benefits for a select
group of management or highly compensated employees within the meaning of
Department of Labor Regulation section 2520.104-23, and is therefore exempt from
the reporting and disclosure, minimum participation and vesting, minimum funding
and related requirements of ERISA.
The undersigned hereby consents to the filing of this opinion as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
SHUMAKER, LOOP & KENDRICK, LLP
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Commercial Bancshares, Inc. of our report dated January 23, 1998,
related to the consolidated balance sheets of Commercial Bancshares, Inc. and
the related statements of income, shareholders' equity and cash flows for the
years then ended, which report is included in the Annual Report on Form 10-KSB
of Commercial Bancshares, Inc. for the fiscal year ended December 31, 1997.
CROWE, CHIZEK AND COMPANY LLP
Columbus, Ohio
March 16, 1999
