<PAGE> 1
As filed with the Securities and Exchange Commission on March 10, 2000
Registration No. _________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CNBC BANCORP
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
OHIO 31-1478140
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 EAST WILSON BRIDGE ROAD, WORTHINGTON, OHIO 43085
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(Address of Principal Executive Offices) (Zip Code)
CNBC BANCORP 1999 STOCK OPTION PLAN
and
CNBC BANCORP 1996 NON-QUALIFIED STOCK OPTION PLAN
-------------------------------------------------
(Full title of the plans)
John A. Romelfanger
Vice President, Treasurer and Secretary
CNBC Bancorp
100 EAST WILSON BRIDGE ROAD, WORTHINGTON, OHIO 43085
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(Name and address of agent for service)
(614) 848-8700
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(Telephone number, including area code, of agent for service)
With copy to:
M. Patricia Oliver, Esq.
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower, 127 Public Square
Cleveland, Ohio 44114-1304
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered Registered Share (1) Price (1) Registration Fee
==================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, no par value(2) 31,829 $28.00 $891,212 $235.28
==================================================================================================================
Common Stock, no par value (3) 168,171 $28.00 $4,708,788 $1,243.12
==================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee. Pursuant to Securities
Act Rule 457(h), the proposed maximum offering price per unit is calculated as the average of the high and
low prices for the common stock as quoted on the NASDAQ electronic bulletin board as of March 6, 2000.
(2) Represents shares issued under the CNBC Bancorp 1999 Stock Option Plan.
(3) Represents shares issued under the CNBC Bancorp 1996 Non-Qualified Stock Option Plan.
==================================================================================================================
</TABLE>
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of
Form S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Such document
need not be filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S-8 (Part II hereof), taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
CNBC Bancorp (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Registration Statement on Form SB-2 filed
March 12, 1999, File No. 333-68797.
(b) The Registrant's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended March 31, 1999, June 30, 1999, and
September 30, 1999.
(c) The description of the Registrant's common shares, without
par value, contained in the Registrant's Registration
Statement on Form SB-2 filed March 12, 1999, File No.
333-68797.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As authorized by Section 1701.13(E) of the Ohio Revised Code,
Section 33 of the Registrant's Code of Regulations provides that directors and
officers of the Registrant may, under certain circumstances, be indemnified
against expenses, including attorneys' fees, and from other liabilities actually
and reasonably incurred by them as a result of any suit brought against them in
their capacity as a director or officer, if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if they
had no reasonable cause to believe their conduct was unlawful. Section 33 also
provides that directors and officers may also be indemnified against expenses,
including attorneys' fees, incurred by them in connection with a derivative suit
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, except that no
indemnification may be made without court approval if such person was adjudged
liable to the corporation.
The Registrant has purchased director and officer liability
insurance in the amount of $5 million covering its current executive officers
and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed as a part of or
incorporated by reference in this Registration Statement.
EXHIBIT NO: DESCRIPTION OF EXHIBIT
4.1 Articles of Incorporation (reference is made to
Exhibit 3.1 to the Registrant's Registration
Statement on Form SB-2 filed March 12, 1999, File No.
333-68797, which exhibit is herein incorporated by
reference.)
4.2 Code of Regulations (reference is made to Exhibit 3.2
to the Registrant's Registration Statement on Form
SB-2 filed March 12, 1999, File No. 333-68797, which
exhibit is herein incorporated by reference.)
5 Opinion of Squire, Sanders & Dempsey L.L.P.
2
<PAGE> 4
23.1 Consent of Crowe, Chizek and Company L.L.P.
23.2 Consent of Squire, Sanders & Dempsey L.L.P.
(contained in the opinion filed as Exhibit 5)
24 Powers of Attorney
99.1 CNBC Bancorp 1999 Stock Option Plan
99.2 CNBC Bancorp 1996 Non-Qualified Stock Option Plan
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the Registration
Statement is on Form S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant
3
<PAGE> 5
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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of 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.
4
<PAGE> 6
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Worthington, and the State of Ohio, on March 10,
2000.
CNBC BANCORP
By: /s/ John A. Romelfanger
-----------------------------
John A. Romelfanger
Vice President, Treasurer and Secretary
(Principal Financial and Accounting Officer)
The undersigned directors and officers of the Registrant do hereby
constitute and appoint John A. Romelfanger, Vice President, Treasurer and
Secretary, with full power of substitution and resubstitution, as
attorney-in-fact of the undersigned, for him/her and in his/her name, place and
stead, to execute and file with the Commission under the Securities Act of 1933
a Registration Statement on Form S-8 relating to the registration of 31,779
common shares issuable or saleable under the CNBC Bancorp 1999 Stock Option Plan
and 168,171 common shares issuable or saleable under the CNBC Bancorp 1996
Non-Qualified Stock Option Plan (the "Securities"), with any and all amendments,
supplements and exhibits thereto, to execute and file any and all other
applications or other documents to be filed with the SEC and all documents
required to be filed with any state securities regulating board or commission
pertaining to such Securities registered pursuant to the Registration Statement
on Form S-8, with any and all amendments, supplements and exhibits thereto, each
such attorney to have full power to act with or without the others, and to have
full power and authority to do and perform, in the name and on behalf of the
undersigned, every act whatsoever necessary, advisable or appropriate to be done
in the premises as fully and to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and approving the act of said
attorneys and any of them and any such substitute.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Thomas D. McAuliffe Chairman of the Board of Directors, February 22, 2000
- ----------------------------------------- President and Chief Executive Officer
Thomas D. McAuliffe (Principal Executive Officer)
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ John A. Romelfanger Vice President, Secretary and Treasurer February 22, 2000
- -----------------------------------------
John A. Romelfanger (Principal Financial and Accounting
Officer)
Director, Vice President and Senior February __, 2000
- -----------------------------------------
Daniel M. Mahoney Lending Officer
/s/ Loretto (Larry) V. Canini Director February 22, 2000
- -----------------------------------------
Loretto (Larry) V. Canini
/s/ Mark S. Corna Director February 22, 2000
- -----------------------------------------
Mark S. Corna
/s/ Jameson Crane, Jr. Director February 22, 2000
- -----------------------------------------
Jameson Crane, Jr.
/s/ Judith A. DeVillers Director February 22, 2000
- -----------------------------------------
Judith A. DeVillers
/s/ George A. Gummer Director February 22, 2000
- -----------------------------------------
George A. Gummer
/s/ William L. Hoy Director February 22, 2000
- -----------------------------------------
William L. Hoy
Director February __, 2000
- -----------------------------------------
Douglas W. James
Director February __, 2000
- -----------------------------------------
Donald R. Kenney
/s/ Samuel E. McDaniel Director February 22, 2000
- -----------------------------------------
Samuel E. McDaniel
/s/ Richard F. Ruhl Director February 22, 2000
- -----------------------------------------
Richard F. Ruhl
Director February __, 2000
- -----------------------------------------
David J. Ryan
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director February __, 2000
- -----------------------------------------
Peter C. Taub
/s/ John A. Tonti Director February 22, 2000
- -----------------------------------------
John A. Tonti
/s/ Alan R. Weiler Director February 22, 2000
- -----------------------------------------
Alan R. Weiler
Director February __, 2000
- -----------------------------------------
Michael Wren
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION METHOD OF FILING
-------------- ----------- ----------------
<S> <C> <C>
4.1 Articles of Incorporation *
4.2 Code of Regulations *
5 Opinion of Squire, Sanders & Dempsey L.L.P. **
23.1 Consent of Crowe, Chizek and Company, L.L.P. **
23.2 Consent of Squire, Sanders & Dempsey L.L.P. **
(contained in the Opinion filed as Exhibit 5)
24 Powers of Attorney See Signature Page
99.1 CNBC Bancorp 1999 Stock Option Plan **
99.2 CNBC Bancorp 1996 Non-qualified Stock Option Plan **
</TABLE>
* Incorporated by reference
** Filed herewith
<PAGE> 1
EXHIBIT 5
March 10, 2000
CNBC Bancorp
100 East Wilson Bridge Road
Suite 100
Worthington, Ohio 43085
Gentlemen:
Reference is made to your Registration Statement on Form S-8 filed
with the Securities and Exchange Commission on March 10, 2000 with respect to
31,829 shares of Common Stock to be offered pursuant to the CNBC Bancorp 1999
Stock Option Plan and 168,171 shares of Common Stock to be offered pursuant to
the CNBC Bancorp 1996 Non-Qualified Stock Option Plan (collectively, the
"Plans"). We are familiar with the Plans, and we have examined such documents
and certificates and considered such matters of law as we deemed necessary for
the purpose of this opinion.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock to be offered pursuant to the Plans, when issued in accordance
with the provisions of the Plans, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
Squire, Sanders & Dempsey L.L.P.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statements on Form S-8 for CNBC Bancorp, the CNBC Bancorp 1999 Stock Option Plan
and the CNBC Bancorp 1996 Non-Qualified Stock Option Plan, of our report dated
February 5, 1999 relating to the consolidated balance sheets of CNBC Bancorp as
of December 31, 1998 and 1997 and the related consolidated statements of income,
comprehensive income, changes in shareholders' equity and cash flows for the
years then ended.
Crowe, Chizek and Company LLP
Columbus, Ohio
March 10, 2000
<PAGE> 1
Exhibit 99.1
CNBC BANCORP
1999 STOCK OPTION PLAN
PART I - GENERAL
1. PURPOSE. The purpose of this CNBC Bancorp 1999 Stock Option Plan
(the "1999 Plan") is to advance the interests of CNBC Bancorp ("CNBC") and its
subsidiaries (collectively, the "Bank") and to enhance the value of the
shareholders' investment in the Bank by encouraging key management employees and
directors (collectively referred to as "Key Personnel") to acquire or increase
and retain a financial interest in the Bank and thereby encourage the Key
Personnel to remain in the service of the Bank and to put forth maximum efforts
for the success of the Bank. In addition, this 1999 Plan is intended to enable
the Bank to compete effectively for the services of potential Key Personnel by
furnishing an additional incentive to join the employment of the Bank. It is
intended that such purposes will be effected by the granting of nonqualified
stock options ("NSOs"), incentive stock options ("ISOs") intended to qualify
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code")
(collectively with NSOs, "Options"), and stock appreciation rights ("Stock
Appreciation Rights").
2. ADMINISTRATION OF THIS 1999 PLAN.
(a) IN GENERAL. This 1999 Plan shall be administered by the Board of
Directors of CNBC (the "Board") or one or more committees appointed by the Board
(the "Committee"). Whenever the term "Board" is used hereafter, it shall also
mean the Committee where appropriate.
(b) AUTHORITY OF THE BOARD. The Board shall have full power and
authority in its discretion, subject to and not inconsistent with the express
provisions of this 1999 Plan, to administer this 1999 Plan and to exercise all
the power and authority specifically granted to it under this 1999 Plan or
necessary or advisable, in the sole and absolute discretion of the Board, for
the administration of this 1999 Plan including, without limitation, the
authority to: select from among Key Personnel those individuals to whom Options
and Stock Appreciation Rights may be granted pursuant to this 1999 Plan; fix the
terms and provisions and restrictions of any Option and Stock Appreciation Right
granted under this 1999 Plan; grant Options and Stock Appreciation Rights,
interpret and construe any provision of this 1999 Plan or of any Option and
Stock Appreciation Right granted hereunder; adopt, amend and rescind such rules
and regulations relating to this 1999 Plan as the Board shall determine in its
discretion, subject to the express provisions of this 1999 Plan; and make all
other determinations deemed by it necessary or advisable for the administration
of this 1999 Plan. All decisions and designations made by the Board pursuant to
the provisions of this 1999 Plan shall be final, binding and conclusive with
respect to all interested parties.
<PAGE> 2
(c) INDEMNIFICATION. Persons ("members") who are or shall have been
members of the Board shall be indemnified and held harmless by CNBC against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by them in connection with or resulting from any claim,
action, suit, or proceeding to which they may be a party or in which they may be
involved by reason of any action taken or failure to act under this 1999 Plan
and against and from any and all amounts paid by them in settlement thereof,
with CNBC's approval, or paid by them in satisfaction of judgment in any such
action, suit, or proceeding against them; provided they shall give CNBC an
opportunity, at its own expense, to handle and defend the same before they
undertake to handle and defend it on their own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under CNBC's Articles of Association or
Bylaws, as a matter of law, or otherwise, or any power that CNBC may have to
indemnify them or hold them harmless. CNBC may refuse to indemnify a member if
such member did not act in good faith in the execution of his or her duties.
3. ELIGIBILITY.
(a) GENERAL. Key Personnel of the Bank shall be eligible to receive
grants of Options and Stock Appreciation Rights pursuant to this 1999 Plan.
Notwithstanding the foregoing, ISOs may only be granted to such Key Personnel
who are employees of the Bank. Key Personnel may include full-time employees,
part-time employees or directors; provided, however, that members of the Board
may not participate in this 1999 Plan unless approved by the majority of
disinterested members of the Board. More than one Option and/or Stock
Appreciation Right may be granted to Key Personnel. The Board shall, in its sole
discretion, from time to time, select from such Key Personnel to whom Options
and Stock Appreciation Rights shall be granted and determine the number of
Common Shares (as hereafter defined) to be included in such Options and Stock
Appreciation Rights.
(b) FACTORS. In determining the Key Personnel to whom Options and
Stock Appreciation Rights are to be granted under this 1999 Plan, the Board
shall take into consideration the respective duties of the Key Personnel, their
present and potential contributions to the success of the Bank and such other
factors as the Board shall deem relevant in connection with accomplishing the
purpose of this 1999 Plan.
(c) NO OTHER RIGHTS. Nothing contained in this 1999 Plan, nor any
Option or Stock Appreciation Right granted pursuant to this 1999 Plan, shall
confer upon any Key Personnel, employee or director any right to continue in the
employment of the Bank nor limit in any way the right of the Bank to terminate
the employment of any employee or director at any time.
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<PAGE> 3
4. SHARES SUBJECT TO THIS 1999 PLAN.
(a) The shares for which Options and Stock Appreciation Rights may
be granted under this 1999 Plan shall consist of thirty-one thousand eight
hundred twenty-nine (31,829) common shares, without par value (the "Common
Shares"), of CNBC; subject to adjustment in Section 5.
(b) Common Shares subject to this 1999 Plan may be, at the
discretion of the Board, either authorized and unissued Common Shares or Common
Shares reacquired by CNBC and held as treasury shares.
(c) If any outstanding Option or Stock Appreciation Right under this
1999 Plan for any reason expires or is terminated without having been exercised
in full, the Common Shares allocable to the unexercised portion thereof shall
(unless this 1999 Plan shall have been terminated) become available for
subsequent grants of Options and Stock Appreciation Rights under this 1999 Plan.
(d) Notwithstanding anything in this 1999 Plan to the contrary, the
grant of Options and Stock Appreciation Rights shall be subject to the following
limitations: (i) in any one calendar year, no more than twelve thousand (12,000)
Common Shares may be granted under Options and Stock Appreciation Rights; and
(ii) in any one calendar year no more than two thousand five hundred (2,500)
Common Shares may be granted under Options and Stock Appreciation Rights to any
one individual under this 1999 Plan.
5. ADJUSTMENTS AND CHANGES IN THE COMMON SHARES.
(a) In the event that the Common Shares as presently constituted
shall be changed into or exchanged for a different kind of shares or other
securities of CNBC or another corporation (whether by reason of merger,
consolidation, recapitalization, reclassification, split-up, combination of
shares or otherwise) or if the number of such shares shall be increased through
the payment of a stock divided or stock split, then unless such change results
in the termination of all outstanding Options pursuant to the provisions of this
1999 Plan, there shall be substituted for or added to each share of CNBC
theretofore appropriate or thereafter subject or which may become subject to an
Option and Stock Appreciation Right under this 1999 Plan, the number and kind of
shares or other securities into which each outstanding share of CNBC shall be so
changed, or for which each such share shall be entitled, as the case may be.
Outstanding Options and Stock Appreciation Rights shall also be appropriately
amended as to price and number of shares and other terms as may be necessary to
reflect the foregoing events. In the event there shall be any other change in
the number or kind of the outstanding shares of CNBC, or of any share or other
securities into which such shares shall have been changed, or for which they
shall have been exchanged, then if the Board shall, in its sole discretion,
determine that such change equitably requires an adjustment in any Option and
Stock
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<PAGE> 4
Appreciation Right theretofore granted or which may be granted under this 1999
Plan, such adjustment shall be made in accordance with such determination.
Fractional shares resulting from any adjustment in Options and Stock
Appreciation Rights pursuant to this Section 5 shall be rounded down to the
nearest whole number of shares.
(b) Notice of any adjustment shall be given by CNBC to each holder
of an Option and Stock Appreciation Right which shall have been so adjusted,
provided that such adjustment (whether or not such notice is given) shall be
effective and binding for all purposes of this 1999 Plan and any instrument or
agreement issued thereunder.
6. EFFECTIVE DATE AND TERMINATION OF PLAN. This 1999 Plan was approved
by the affirmative vote of the Board on March 11, 1999. This 1999 Plan was
approved by a majority of the shareholders of CNBC on April 20, 1999. This Plan
shall terminate upon the earlier of (i) March 11, 2009; or (ii) the date on
which all Common Shares available for issuance under this 1999 Plan have been
issued pursuant to the exercise of options granted hereunder; or (iii) the
determination of the Board that this 1999 Plan shall terminate. No Options or
Stock Appreciation Rights may be granted under this 1999 Plan after such
termination date, provided that the Options and Stock Appreciation Rights
granted and outstanding on such termination date shall continue to have force
and effect in accordance with the provisions of the Option Agreements and SAR
Agreements (as hereafter defined) evidencing such.
7. AMENDMENT OF THIS 1999 PLAN. The Board may, from time to time,
alter, amend, modify, suspend or discharge or make such changes in and additions
to this 1999 Plan as it may deem desirable, without further action on the part
of the shareholders of CNBC; provided, however, that no such action shall
deprive any person without such person's consent of any rights theretofore
granted pursuant hereto and further provided, however, that, except as provided
in this 1999 Plan, no action of the Board, unless taken with the approval of
shareholders of CNBC, may:
(a) increase the total number of Common Shares available
for issuance pursuant to this 1999 Plan;
(b) reduce the minimum Option price;
(c) increase the period in which Options and Stock
Appreciation Rights granted under this 1999 Plan may
be exercised;
(d) increase the number of Common Shares subject to this
1999 Plan which may be optioned to any one individual
or in any one year;
(e) extend the termination date of this 1999 Plan; or
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<PAGE> 5
(f) change the class of Key Personnel eligible to receive
options under this 1999 Plan.
Subject to and without limiting the generality of the foregoing, the Board may
amend or modify this 1999 Plan and any outstanding Options and Stock
Appreciation Rights under this 1999 Plan to the extent necessary to qualify any
or all of such Options and Stock Appreciation Rights or future Options and Stock
Appreciation Rights to be granted for such beneficial federal income tax
treatment as may be afforded employee stock options under the Code or any
amendments thereto or other statutes or regulations or rules (or any
interpretations thereof by any applicable governmental agency or entity) which
become effective after the effective date of this 1999 Plan (including without
limitation any proposed or final Treasury regulations).
8. NOTICES. Each notice relating to this 1999 Plan shall be in writing
and delivered in person or by first class or certified mail to the proper
addressee. Each notice shall be deemed to have been given on the date it is
received. Each notice to the Board shall be addressed as follows:
CNBC Bancorp
100 E. Wilson Bridge Road, Suite 100
Worthington, Ohio 43085
Attention: Board of Directors
Each notice to a holder of Options and/or Stock Appreciation Rights (or
other person or persons then entitled to exercise an Option) shall be addressed
to the holder (or such other person or persons), at the holder's address set
forth in the Bank's current personnel records. Anyone to whom a notice may be
given under this 1999 Plan may designate, in writing, a new address by notice to
that effect.
PART II - STOCK APPRECIATION RIGHTS
9. GENERAL. Each grant of Stock Appreciation Rights under this 1999
Plan shall be evidenced by an agreement between CNBC and the grantee which
contains the terms, conditions and restrictions pertaining to his or her Stock
Appreciation Rights (the "SAR Agreement"). The provisions of the various SAR
Agreements entered into under this 1999 Plan need not be identical. Each SAR
Agreement shall specify the number of Common Shares to which the Stock
Appreciation Rights pertain and Stock Appreciation Rights may be granted in
conjunction with all or part of any Option granted under this 1999 Plan. In the
case of a NSO, such rights may be granted either at or after the time of the
grant of such Option. In the case of an ISO, such rights may be granted only at
the time of the grant of such Option. If a Stock Appreciation Right is granted
in connection with an Option granted under this 1999 Plan, such Stock
Appreciation Right may cover the
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<PAGE> 6
same number of Common Shares covered by an Option or such lesser number of
Common Shares as the Board may determine.
10. TERMINATION. Unless otherwise provided in the SAR Agreement, a
Stock Appreciation Right or applicable portion thereof granted with respect to a
given Option shall terminate and no longer be exercisable upon the termination
or exercise of the related Option.
11. OTHER TERMS AND CONDITIONS. Stock Appreciation Rights granted under
the Plan shall be subject to the following terms and conditions, and shall
contain such additional terms and conditions, not inconsistent with the
provisions of this 1999 Plan, as the Board shall deem appropriate.
(a) EXERCISABILITY AND TERM. Each SAR Agreement shall specify the
date when all or any installment of the Stock Appreciation Rights is to become
exercisable. The SAR Agreement shall also specify the term of the Stock
Appreciation Rights. The SAR Agreement may provide for accelerated
exercisability in the event of the grantee's death, disability, or retirement or
other events and may provide for expiration prior to the end of its term in the
event of the termination of the grantee's service with the Bank. Stock
Appreciation Rights shall be exercisable only at such time or times and to the
extent that the Options to which they relate, if any, shall be exercisable in
accordance with the provisions of the SAR Agreement and this 1999 Plan;
provided, however, that a Stock Appreciation Right granted subsequent to the
grant of the related Option shall not be exercisable during the first six months
of its terms; and provided, further, however, that a Stock Appreciation Right
granted in connection with an ISO may be exercised only if and when the market
price of the Common Share subject to the ISO exceeds the exercise price of such
ISO.
(b) AMOUNT PAYABLE. Upon the exercise of a Stock Appreciation Right,
an Optionee shall be entitled to receive up to, but not more than, an amount in
cash or Common Shares equal in value to the excess of the Market Value of one
Common Share over the option price per share specified in the related Option,
multiplied by the number of Common Shares in respect of which the Stock
Appreciation Right shall have been exercised. The Board shall determine the form
of payment.
(c) TRANSFERABILITY. Stock Appreciation Rights shall be transferable
only when and to the extent that the underlying Option would be transferable
under this 1999 Plan.
(d) CHANGE IN CONTROL OF CNBC. Any SAR Agreement may provide that
Stock Appreciation Rights will be exercisable in the event of a Change in
Control.
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PART III - OPTIONS
12. GRANT OF OPTIONS.
(a) To the extent not inconsistent with the provisions of this 1999
Plan, the Board shall fix the terms and provisions and restrictions of Options,
including the number of Common Shares to be subject to each Option, the dates on
which Options may be fully or partially exercised, the minimum period (if any)
during which the same must be held until exercisable and the expiration dates
thereof. Options granted hereunder shall be evidenced by a written option
agreement (an "Option Agreement") between the Option holder and the Board. The
Option Agreement shall contain such terms, conditions and limitations as
provided by the Board, but shall also be subject to the provisions of this
Section 12 and other Sections of Part III of this 1999 Plan. Each Option
Agreement shall specify whether the Option is an ISO or a NSO. The provisions of
the various Option Agreements need not be identical.
(b) The Option purchase price to be paid by Option holders in this
1999 Plan for a Common Share shall be determined by the Board, but shall be in
no event less than the greater of the fair market value or book value of the
Common Shares on the date such Option is granted. The fair market value of the
Common Shares on a particular date shall be determined by the Board.
(c) Any Option granted hereunder shall provide, as determined by the
Board, for appropriate arrangements for the satisfaction by CNBC and the Option
holder of all federal, state, local or other income, excise or employment taxes
or tax withholding requirements applicable to the exercise of the Option or the
later disposition of the Common Shares or other property thereby acquired and
all such additional taxes or amounts as determined by the Board in its
discretion, including, without limitations, the right of the Bank to receive
transfers of Common Shares or other property from the Option holder or to deduct
or withhold in the form of cash or shares from any transfer or payment to an
Option holder, in such amount or amounts deemed required or appropriate by the
Board in its sole and absolute discretion.
(d) The Board shall have the authority to effect, at any time and
from time to time, with the consent of the affected Option holder or Option
holders, the cancellation of any or all outstanding Options granted under this
1999 Plan and the grant in substitution thereof of new Options under this 1999
Plan (subject to the limitations hereof) covering the same or different numbers
of Common Shares at an Option price per share in all events not less than the
fair market value or book value of the Common Shares on the new grant date.
(f) The Board may include in an Option Agreement such other terms
and conditions not inconsistent with the foregoing as the Board shall approve.
Without limiting the generality of the foregoing sentence, the Board shall be
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authorized to determine that Options shall be exercisable in one or more
installments during the term of the Option and the right to exercise may be
cumulative as determined by the Board.
13. NOTICE OF GRANT OF OPTION. Upon the granting of any Option to a
participant, the Board shall promptly cause such participant to be notified of
the fact of such grant. The date on which an Option shall be granted shall be
the date of the Board's authorization of such grant or such later date as may be
determined by the Board at the time such grant is authorized, subject to the
satisfaction of any conditions the Board may place on the effectiveness of the
grant.
14. ACCELERATION OF EXERCISE OF OPTIONS.
(a) In the event of a Change in Control of CNBC, as hereinafter
defined, or in the event of the death or permanent disability of an Option
holder, the following provisions shall apply to Options previously granted under
this 1999 Plan, notwithstanding any provision herein or in any agreement to the
contrary:
(i) all Options which provide for exercise in one
or more installments shall become immediately
exercisable in full;
(ii) if any Option holder shall cease to be employed
by the Bank within one (1) year following a
Change in Control, the Option may in all events
be exercised for a period of three (3) months
after such termination of employment and within
the Option period;
(iii) all Options under this 1999 Plan which have not
previously vested shall become vested; and
(iv) the exercise restrictions provided in Section
16 of this 1999 Plan shall not be applicable.
(b) For purposes of this 1999 Plan, the term "Change in Control" in
ownership of CNBC shall mean and shall be deemed to have occurred if (i) any
person (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of CNBC representing thirty percent (30%) or more of
the combined voting power of CNBC's then outstanding securities, or (ii) there
commences a tender offer for securities of CNBC which, if successful, would
result in any person becoming the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of CNBC
representing thirty percent (30%) or more of the combined voting power of CNBC's
then outstanding securities, or (iii) there is a consolidation or combination of
CNBC with, or merger of CNBC into or with, any
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<PAGE> 9
other company and the inside stockholders are not beneficial owners (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
a company that directly or indirectly owns CNBC representing more than thirty
percent (30%) of the combined voting power of such controlling company, or (iv)
there is an acquisition of CNBC or of all or substantially all of the assets of
CNBC by another person, company or entity.
(c) The grant of Options under this 1999 Plan shall in no way affect
the right of CNBC to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
15. ADDITIONAL PROVISIONS. Any Option Agreements authorized under this
1999 Plan shall contain such other provisions as the Board shall deem advisable
which are not inconsistent with the terms herein stated.
16. EXERCISE OF OPTIONS.
(a) The exercise of Options shall be subject to restrictions that
may be created by the Board in its discretion as to the number of such Options
which may be exercised by an Option holder at a given time or in a given period
of time. The Board shall establish a vesting period, schedule and criteria for
the exercise of Options as it deems appropriate, such as vesting in installments
upon the achievement by CNBC or Option holder of specified periods of continued
employment, specific performance criteria or other goals.
(b) Each Option granted under this 1999 Plan shall be exercisable on
such date or dates and during such period and for such number of Common Shares
as shall be determined pursuant to the terms of the Agreement evidencing such
Option. An Option may be exercised by notice given to the Board in such form as
the Board shall require. No fraction of a Common Share may be purchased by an
Option holder upon exercising his option, and to the extent that the use of
fractional or percentage computations would otherwise give rise to the right of
the Option holder to purchase a fraction of a Common Share, the total Common
Shares subject to exercise shall be adjusted down to the nearest whole number.
17. EXERCISE AFTER TERMINATION OF EMPLOYMENT.
(a) Except as otherwise provided in this 1999 Plan, an Option
holder's Options (i) are exercisable only by the Option holder, and (ii) are
exercisable only while the Option holder is in the employment of the Bank except
as provided in Section 14.
(b) Except as provided in Section 14 of this 1999 Plan, any Option
holder's Option which is exercisable by its terms at the time the Option holder
ceases
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<PAGE> 10
to be in the employment of the Bank must be exercised on or before the earlier
of (i) thirty (30) days after the date of termination of employment, or (ii) the
fixed expiration date of such Option after which period such Option shall
expire. However, Options cease to be exercisable on the date the Option holder
ceases to be in the employment of the Bank if termination of employment is for
nonperformance of duties or other cause.
(c) In the event of the death of the Option holder, each of that
Option holder's unexercised options (whether or not then exercisable by their
terms) shall become immediately exercisable by his or her estate for a period
ending on the earlier of the fixed expiration date of such Option or twelve
months after the date of death, after which period such Option shall expire. For
purposes hereof, the estate of an Option holder shall be defined to include the
legal representatives thereof or any person who has acquired the right to
exercise an option by reason of the death of the Option holder.
(d) In the event of the termination of employment by reason of the
permanent disability (as defined below) of the Option holder, each of that
Option holder's unexercised Options (whether or not then exercisable by their
terms) shall become exercisable for a period ending on the earlier of (i) the
fixed expiration date of such Option, or (ii) twelve (12) months from the date
of termination after which period such Option shall expire. For purposes of
Section 15 or this Section 17(d), "permanent disability" shall be deemed to be
the inability of the Option holder to perform the duties of his or her job with
the Bank because of a physical or mental disability as evidenced by the opinion
of a Bank-approved doctor of medicine licensed to practice medicine in the
United States of America.
(e) In the event of the death or permanent disability of the Option
holder, the estate or Option holder, respectively, may request cash payment
equal to the difference between the fair market value of the Common Shares and
the Option exercise price multiplied by the number of Options outstanding in
exchange for surrendering its options to the Bank; however, the Board, in its
sole discretion, may approve or deny the request.
18. PAYMENT FOR COMMON SHARES. Common Shares which are subject to an
Option shall be transferred only upon exercise of the Option in whole or in part
and upon full payment of the purchase price for the Common Shares as to which
the Option is exercised. The Option price shall be payable upon exercise of the
Option in United States dollars in cash, check, bank draft or money order.
19. TERMINATION OF OPTION. Each Option shall terminate in any event no
later than ten (10) years from the date of the grant.
20. ASSIGNABILITY. An Option granted under this 1999 Plan may not be
transferred except by will or the laws of descent and distribution and, during
the
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<PAGE> 11
lifetime of the Option holder to whom granted, may be exercised only by him or
her, his or her guardian or legal representative.
PART IV - MISCELLANEOUS
21. LAWS AND REGULATIONS.
(a) This 1999 Plan and all Options and Stock Appreciation Rights
granted pursuant to it are subject to all laws and regulations of any
governmental authority which may be applicable thereof, and notwithstanding any
provisions of this 1999 Plan or the Options and Stock Appreciation Rights
granted, the holder of an Option and/or Stock Appreciation Rights shall not be
entitled to exercise such Option and/or Stock Appreciation Right, nor shall CNBC
be obligated to issue any Common Shares or pay any cash under this 1999 Plan to
the holder, if such exercise, issuance or payment shall constitute a violation
by the Option holder or the Bank of any provisions of any such law or
regulation.
(b) CNBC, in its discretion, may postpone the issuance and delivery
of Common Shares upon any exercise of an Option and/or Stock Appreciation Right
until completion of any stock exchange listing or registration or other
qualification of such Common Shares under any state or federal law, rule or
regulation as CNBC may consider appropriate; and may require any person
exercising an option to make such representations and furnish such information
as it may consider appropriate in connection with the issuance of the Common
Shares in compliance with applicable law. Under such circumstances, CNBC shall
proceed with reasonable promptness to complete any such listing, registration or
other qualification.
(c) Common Shares issued and delivered upon exercise of an Option
and/or Stock Appreciation Right shall be subject to such restrictions on
trading, including appropriate legending of certificates to that effect, as
CNBC, in its discretion, shall determine are necessary to satisfy applicable
legal requirements and obligations.
22. SHAREHOLDER RIGHTS. An Option and/or Stock Appreciation Right
holder shall have none of the rights of a shareholder of CNBC with respect to
any Common Shares subject to any Option or Stock Appreciation Right granted
hereunder until such individual shall have exercised the Option or Stock
Appreciation Right and been issued Common Shares therefor.
23. SEVERABILITY. If any provision of this 1999 Plan shall cause this
1999 Plan to violate any provision of any applicable law, rule or governmental
regulation or to be considered null and void, such provision shall be severed
from this 1999 Plan and shall be null and void or shall be deemed null and void
ab initio, as shall be
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<PAGE> 12
appropriate or necessary and this 1999 Plan shall continue in full force and
effect as such provisions were not part of this 1999 Plan.
24. USE OF PROCEEDS. The proceeds received by CNBC from the sale of
Common Shares pursuant to the Options granted under this 1999 Plan shall be used
for general corporate purposes.
25. EXPENSES. The expenses of this 1999 Plan shall be borne by CNBC.
* * *
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Exhibit 99.2
CNBC BANCORP
1996 NON-QUALIFIED STOCK OPTION PLAN
(AS AMENDED AND RESTATED MARCH 18, 1997)
PART I GENERAL
1. PURPOSE. The purpose of this Commerce National Bank ("CNBC") 1996
Non-Qualified Stock Option Plan (the "Plan") is to advance the interests of CNBC
(the "Bank") and to enhance the value of the shareholders' investment in the
Bank by encouraging key management employees and directors (collectively
referred to as "key personnel" and "personnel") to acquire or increase and
retain a financial interest in the Bank and thereby encourage the key personnel
to remain in the employment of the Bank and to put forth maximum efforts for the
success of the Bank. In addition, the Plan is intended to enable the Bank to
compete effectively for the services of potential key personnel by furnishing an
additional incentive to join the employment of the Bank. It is intended that
non-qualified stock options may be granted under the Plan. Effective March 18,
1997, the Plan is renamed the CNBC Bancorp 1996 Non-qualified Stock Option Plan,
and the definition of "Bank" is changed from "CNBC" to "CNBC Bancorp and its
subsidiaries" or to "CNBC Bancorp", as appropriate.
2. ADMINISTRATION OF THE PLAN.
(a) COMMITTEE. The Plan shall be administered by the Compensation
Committee (the "Committee") established under the bylaws of the Bank. The
members of the Committee shall be appointed by, and serve at the pleasure of,
the board of directors of the Bank. Effective March 18, 1997, the Plan shall be
administered by the Board of Directors of CNBC Bancorp (the "Board"), instead of
by the Committee.
(b) AUTHORITY OF THE COMMITTEE. The Committee shall have full power
and authority in its discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
power and authority specifically granted to it under the Plan or necessary or
advisable, in the sole and absolute discretion of the Committee, for the
administration of the Plan including, without limitation, the authority to:
select from among key personnel those individuals to whom stock options may be
granted pursuant to the Plan; fix the terms and provisions and restrictions of
any option granted under the Plan; grant options, interpret and construe any
provision of the Plan or of any option granted hereunder; adopt, amend and
rescind such rules and regulations relating to the Plan as the Committee shall
determine in its discretion, subject to the express provisions of the Plan; and
make all other determinations deemed by it necessary or advisable for the
administration of the Plan. All decisions and designations made by the Committee
pursuant to the provisions of the Plan shall be final, binding and conclusive
with respect to all interested parties, unless otherwise determined by the board
of directors. However, any actions which directly affect a committee member must
be approved by a majority of disinterested members of the board of directors.
Effective March 18, 1997, all references to the "Committee" in this Section of
2(b) are replaced by "Board"; the phrase "unless otherwise determined by the
board of directors" in the second sentence is deleted; and the last sentence is
deleted.
(c) VACANCIES, ETC. The board of directors shall fill all vacancies,
however caused, in the Committee. The board of directors may, from time to time,
appoint additional members to the Committee, and may at any time remove one or
more Committee members and substitute others. One member of the Committee shall
be selected by the board of directors to serve as chairman of the Committee. The
Committee shall hold its meetings at such times and places as it shall deem
advisable. All determinations of the Committee shall be made by a majority of
its members. The Committee may appoint a secretary and make such rules and
regulations for the conduct of its business as it shall deem advisable, and
shall keep minutes of its meetings. Effective March 18, 1997, this Section 2(c)
is deleted.
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<PAGE> 2
(d) INDEMNIFICATION. Persons ("members") who are or shall have been
members of the Committee or of the board of directors shall be indemnified and
held harmless by the Bank against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by them in connection with or
resulting from any claim, action, suit, or proceeding to which they may be a
party or in which they may be involved by reason of any action taken or failure
to act under the Plan and against and from any and all amounts paid by them in
settlement thereof, with the Bank's approval, or paid by them in satisfaction of
judgment in any such action, suit, or proceeding against them; provided they
shall give the Bank an opportunity, at its own expense, to handle and defend the
same before they undertake to handle and defend it on their own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Bank's Articles
of Association or Bylaws, as a matter of law, or otherwise, or any power that
the Bank may have to indemnify them or hold them harmless. The Bank may refuse
to indemnify a member if such member did not act in good faith in the execution
of his or her duties. Effective March 18, 1997, the phrase "or the Board" is
inserted after the phrase "or of the board of directors" in the second line
hereof.
3. CONSOLIDATION OF PRIOR NON-QUALIFIED STOCK OPTION PLANS. The Plan
hereby incorporates and consolidates all previously approved Non-Qualified Stock
Option Plans (the "Prior Plans" into the Plan and all terms and conditions of
the Plan will govern and dictate all options previously issued. The Prior Plans
include the 1991, 1992, 1993, 1994 and 1995 Non-Qualified Stock Option Plans of
Commerce National Bank. All options granted pursuant to the Prior Plans are
subject to the provisions of the Plan. A total of 71,070 shares have been
granted under the Prior Plans.
4. ELIGIBILITY.
(a) GENERAL. "Key Personnel" of the Bank shall be eligible to
receive stock options pursuant to the Plan. Key personnel may include full-time
employees, part-time employees or directors. Provided, however, that members of
the Committee may not participate in the Plan unless approved by the majority of
disinterested members of the board of directors. More than one option may be
granted to a participant. The Committee shall, in its sole discretion, from time
to time, select from such key personnel to whom stock options shall be granted
and determine the number of shares to be included in such stock option.
Effective March 18, 1997, the foregoing references to "Committee" are changed to
"Board".
(b) FACTORS. In determining the persons to whom stock options are to
be granted under the Plan, the Committee shall take into consideration the
respective duties of the persons, their present and potential contributions to
the success of the Bank and such other factors as the Committee shall deem
relevant in connection with accomplishing the purpose of the Plan. Effective
March 18, 1997, the foregoing references to "Committee" are changed to "Board".
(c) NO OTHER RIGHTS. Nothing contained in the Plan, nor any stock
option granted pursuant to the Plan, shall confer upon any employee or director
any right to continue in the employment of the Bank nor limit in any way the
right of the Bank to terminate the employment of any employee or director at any
time.
5. SHARES SUBJECT TO THE PLAN.
(a) The shares for which options may be granted under the Plan shall
consist of 90,000 common shares, par value $5.00 per share (the "Common
Shares"), of the Bank; subject to adjustment in Section 11. The shares issued in
conjunction with the Prior Plans are included as shares subject to the Plan.
(b) Common Shares subject to the Plan may be, at the discretion of
the board of directors, either authorized and unissued Common Shares or Common
Shares reacquired by the Bank and held as treasury shares.
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<PAGE> 3
(c) If any outstanding option under the Plan for any reason expires
or is terminated without having been exercised in full, the Common Shares
allocable to the unexercised portion of such option shall (unless the Plan shall
have been terminated) become available for subsequent grants of options under
the Plan.
(d) Effective November 30, 1996, the phrase "par value $5.00 per
share" in Section 9(a) is changed to "without par value", the term "Common
Shares" shall refer to "common shares of CNBC Bancorp" and all references to
"Bank" are replaced by "CNBC Bancorp".
6. EFFECTIVE DATE AND TERMINATION OF PLAN. The Plan was approved by the
affirmative vote of the board of directors on February 20, 1996. The effective
date of the Plan shall be April 16, 1996, subject to the approval of
shareholders owning a majority of the voting shares of the Bank. This Plan shall
terminate upon the earlier of (i) April 16, 2001; or (ii) the date on which all
Common Shares available for issuance under the Plan have been issued pursuant to
the exercise of options granted hereunder; or (iii) the determination of the
board of directors that the Plan shall terminate. No options may be granted
under the Plan after such termination date, provided that the options granted
and outstanding on such termination date shall continue to have force and effect
in accordance with the provisions of the documents evidencing such options.
Effective November 30, 1996, the foregoing references to "Common Shares" shall
refer to "common shares of CNBC Bancorp".
7. AMENDMENT OF THE PLAN. The board of directors may, from time to
time, alter, amend, modify, suspend or discharge or make such changes in and
additions to this Plan as it may deem desirable, without further action on the
part of the shareholders of the Bank; provided, however, that no such action
shall deprive any person without such person's consent of any rights theretofore
granted pursuant hereto and further provided, however, that, except as provided
in Section 11, no action of the Board, unless taken with the affirmative vote of
the holders of a majority of the oustanding common shares of the Bank, may:
(a) increase the total number of Common Shares available for
issuance pursuant to the Plan;
(b) reduce the minimum option price;
(c) increase the period in which options granted under the
Plan may be exercised;
(d) increase the number of Common Shares subject to the Plan
which may be optioned to any one individual or in any one
year;
(e) extend the termination date of the Plan; or
(f) change the class of employees eligible to receive options
under the Plan.
Subject to and without limiting the generality of the foregoing, the Board may
amend or modify the Plan and any outstanding options under the Plan to the
extent necessary to qualify any or all of such options or future options to be
granted for such beneficial federal income tax treatment as may be afforded
employee stock options under the Code or any amendments thereto or other
statutes or regulations or rules (or any interpretations thereof by any
applicable governmental agency or entity) which become effective after the
effective date of the Plan (including without limitation any proposed or final
Treasury regulations). Effective November 30, 1996, the foregoing references to
"shareholders of the Bank" shall refer to "shareholders of CNBC" and the term
"Common Shares" shall refer to "common shares of CNBC Bancorp".
8. NOTICES. Each notice relating to this Plan shall be in writing and
delivered in person or by first class or certified mail to the proper addressee.
Each notice shall be deemed to have been given on the date it is received. Each
notice to the Committee shall be addressed as follows:
Commerce National Bank
100 E. Wilson Bridge Rd., Suite 100
Worthington, OH 43085
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<PAGE> 4
Attention: Compensation Committee
Each notice to a holder of options (or other person or persons then
entitled to exercise an option) shall be addressed to the holder (or such other
person or persons), at the holder's address set forth in the Bank's current
personnel records. Anyone to whom a notice may be given under this Plan may
designate, in writing, a new address by notice to that effect. Effective March
18, 1997, the third sentence hereof is amended to read as follows: Each Notice
to the Board shall be addressed as follows:
CNBC Bancorp
100 E. Wilson Bridge Road, Suite 100
Worthington, OH 43085
Attention: Board of Directors
PART II OPTIONS
9. GRANT OF OPTIONS.
(a) To the extent not inconsistent with the provisions of this Plan,
the Committee shall fix the terms and provisions and restrictions of options,
including the number of Common Shares to be subject to each option, the dates on
which options may be fully or partially exercised, the minimum period (if any)
during which the same must be held until exercisable and the expiration dates
thereof. Options granted hereunder shall be evidenced by a written option
agreement (an "Agreement") between the option holder and the Committee. The
Agreement shall contain such terms, conditions and limitations as provided by
the Committee, but shall also be subject to the provisions of this Section 9 and
other Sections of Part II of this Plan.
(b) Notwithstanding anything in this Plan to the contrary, the grant
of options shall be subject to the following limitations: (i) in any one fiscal
year, no more than 6,000 Common Shares may be granted under options; and (ii) in
any one fiscal year not more than 1,000 Common Shares may be granted under
options to any one individual in the Plan.
(c) The option purchase price to be paid by option holders in the
Plan for a Common Share, shall be determined by the Committee, but shall be in
no event less than the greater of the fair market value or book value of the
Common Shares on the date such stock option is granted. The fair market value of
the Common Shares on a particular date shall be determined by the Committee.
(d) Any option granted hereunder shall provide, as determined by the
Committee, for appropriate arrangements for the satisfaction by the Bank and the
option holder of all federal, state, local or other income, excise or employment
taxes or tax withholding requirements applicable to the exercise of the option
or the later disposition of the Common Shares or other property thereby acquired
and all such additional taxes or amounts as determined by the Committee in its
discretion, including, without limitations, the right of the Bank to receive
transfers of Common Shares or other property from the option holder or to deduct
or withhold in the form of cash or shares from any transfer or payment to an
option holder, in such amount or amounts deemed required or appropriate by the
Committee in its sole and absolute discretion.
(e) The Committee shall have the authority to effect, at any time
and from time to time, with the consent of the affected option holder or option
holders, the cancellation of any or all outstanding options granted under the
Plan and the grant in substitution thereof of new options under the Plan
(subject to the limitations hereof) covering the same or different numbers of
Common Shares at an option price per share in all events not less than the fair
market value or book value of the common stock on the new grant date.
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<PAGE> 5
(f) The Committee may include such other terms and conditions not
inconsistent with the foregoing as the Committee shall approve. Without limiting
the generality of the foregoing sentence, the Committee shall be authorized to
determine that options shall be exercisable in one or more installments during
the term of the option and the right to exercise may be cumulative as determined
by the Committee.
(g) Effective November 30, 1996, all references to "Common Shares"
in this Section 9 shall refer to common shares of CNBC Bancorp. Effective March
18, 1997, all references to "Committee" in this Section 9 are changed to
"Board".
10. NOTICE OF GRANT OF OPTION. Upon the granting of any option to a
participant, the Committee shall promptly cause such participant to be notified
of the fact of such grant. The date on which an option shall be granted shall be
the date of the Committee's authorization of such grant or such later date as
may be determined by the Committee at the time such grant is authorized, subject
to the satisfaction of any conditions the Committee may place on the
effectiveness of the grant. Effective March 18, 1997, all references to
"Committee" in this Section 10 are changed to "Board".
11. ADJUSTMENTS AND CHANGES IN THE COMMON SHARES
(a) In the event that the Common Shares as presently constituted
shall be changed into or exchanged for a different kind of shares or other
securities of the Bank or another corporation (whether by reason of merger,
consolidation, recapitalization, reclassification, split-up, combination of
shares or otherwise) or if the number of such shares shall be increased through
the payment of a stock dividend or stock split, then unless such change results
in the termination of all outstanding options pursuant to the provisions of
Section 12 hereof, there shall be substituted for or added to each share of the
Bank theretofore appropriated or thereafter subject or which may become subject
to an option under this Plan, the number and kind of shares or other securities
into which each outstanding share of the Bank shall be so changed, or for which
each such share shall be entitled, as the case may be. Outstanding options shall
also be appropriately amended as to price and number of shares and other terms
as may be necessary to reflect the foregoing events. In the event there shall be
any other change in the number or kind of the outstanding shares of the Bank, or
of any share or other securities into which such shares shall have been changed,
or for which they shall have been exchanged, then if the Committee shall, in its
sole discretion, determine that such change equitably requires an adjustment in
any option theretofore granted or which may be granted under the Plan, such
adjustment shall be made in accordance with such determination. Fractional
shares resulting from any adjustment in options pursuant to this Section 11
shall be rounded down to the nearest whole number of shares.
(b) Notice of any adjustment shall be given by the Bank to each
holder of an option which shall have been so adjusted, provided that such
adjustment (whether or not such notice is given) shall be effective and binding
for all purposes of the Plan and any instrument or agreement issued thereunder.
(c) Effective November 30, 1996, all references to "Bank" are
changed to "CNBC Bancorp" and all references to "Common Shares" shall refer to
"common shares of CNBC Bancorp". Effective March 18, 1997, all references to
"Committee" in this section 11(a) are changed to "Board".
12. ACCELERATION OF EXERCISE OF OPTIONS.
(a) In the event of a Change in Control of the Bank, as
hereinafter defined, or in the event of the death or
permanent disability of an option holder, the following
provisions shall apply to stock options previously granted
under the Plan, notwithstanding any provision herein or in
any agreement to the contrary:
(i) all options which provide for exercise in one or more
installments shall become immediately exercisable in
full;
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(ii) if any option holder shall cease to be employed by
the Bank within one (1) year following a Change in
Control, the option may in all events be exercised
for a period of three (3) months after such
termination of employment and within the option
period;
(iii) all options under the Plan which have not previously
vested shall become vested; and
(iv) the exercise restrictions provided in Section 15 of
the Plan shall not be applicable.
(b) For purposes of the Plan, the term "Change in Control" in
ownership of the Bank shall mean and shall be deemed to have occurred if (i) any
person [as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")], is or becomes the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Bank representing thirty percent (30%) or more
of the combined voting power of the Bank's then outstanding securities, or (ii)
there commences a tender offer for securities of the Bank which, if successful,
would result in any person becoming the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank
representing thirty percent (30%) or more of the combined voting power of the
Bank's then outstanding securities, or (iii) there is a consolidation or
combination of the Bank with, or merger of the Bank into or with, any other
company and the inside stockholders are not beneficial owners (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of a
company that directly or indirectly owns the Bank representing more than thirty
percent (30%) of the combined voting power of such controlling company, or (iv)
there is an acquisition of the Bank or of all or substantially all of the assets
of the Bank by another person, company or entity.
(c) The grant of options under this Plan shall in no way affect the
right of the Bank to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
(d) Effective November 30, 1996, all references in Section 12 to
"Bank" are changed to "CNBC Bancorp".
13. ADDITIONAL PROVISIONS. Any Agreements authorized under the Plan
shall contain such other provisions as the Committee and the Board of Directors
of the Bank shall deem advisable which are not inconsistent with the terms
herein stated. Effective March 18, 1997, the phrase "the Committee and the Board
of the Directors of the Bank" is replaced by the phrase "the Board".
14. EXERCISE OF OPTIONS.
(a) The exercise of stock options shall be subject to restrictions
that may be created by the Committee in its discretion as to the number of such
options which may be exercised by an option holder at a given time or in a given
period of time. The Committee shall establish a vesting period, schedule and
criteria for the exercise of options as it deems appropriate, such as vesting in
installments upon the achievement by the Bank or option holder of specified
periods of continued employment, specific performance criteria or other goals.
(b) Each option granted under this Plan shall be exercisable on such
date or dates and during such period and for such number of Common Shares as
shall be determined pursuant to the terms of the Agreement evidencing such
option. An option may be exercised by notice given to the Committee in such form
as the Committee shall require. No fraction of a Common Share may be purchased
by an option holder upon exercising his option, and to the extent that the use
of fractional or percentage computations would
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otherwise give rise to the right of the option holder to purchase a fraction of
a Common Share, the total Common Shares subject to exercise shall be adjusted
down to the nearest whole number.
(c) Effective November 30, 1996, all references to "Common Shares"
in this Section 14 shall refer to "common shares of "CNBC Bancorp'". Effective
March 18, 1997, the references to "Committee" in Sections 14(a) and (b) are
changed to "Board".
15. EXERCISE AFTER TERMINATION OF EMPLOYMENT
(a) Except as otherwise provided in the Plan, an option holder's
options (i) are exercisable only by the option holder, and (ii) are exercisable
only while the option holder is in the employment of the Bank except as provided
in Sections 15(b) through 15(e).
(b) Except as provided in Section 12 of the Plan, any option
holder's option which is exercisable by its terms at the time the option holder
ceases to be in the employment of the Bank must be exercised on or before the
earlier of (i) thirty (30) days after the date of termination of employment, or
(ii) the fixed expiration date of such option after which period such option
shall expire. However, options cease to be exercisable on the date the option
holder ceases to be in the employment of the Bank if termination of employment
is for nonperformance of duties or other cause.
(c) In the event of the death of the option holder, each of that
option holder's unexercised options (whether or not then exercisable by their
terms) shall become immediately exercisable by his or her estate for a period
ending on the earlier of the fixed expiration date of such option or twelve
months after the date of death, after which period such option shall expire. For
purposes hereof, the estate of an option holder shall be defined to include the
legal representatives thereof or any person who has acquired the right to
exercise an option by reason of the death of the option holder.
(d) In the event of the termination of employment by reason of the
permanent disability (as defined below) of the option holder, each of that
option holder's unexercised options (whether or not then exercisable by their
terms) shall become exercisable for a period ending on the earlier of (i) the
fixed expiration date of such option, or (ii) twelve months from the date of
termination after which period such option shall expire. For purposes of Section
12 or this Section 15(d), "permanent disability" shall be deemed to be the
inability of the option holder to perform the duties of his or her job with the
Bank because of a physical or mental disability as evidenced by the opinion of a
Bank-approved doctor of medicine licensed to practice medicine in the United
States of America.
(e) In the event of the death or permanent disability of the option
holder, the estate or option holder, respectively, may request cash payment
equal to the difference between the fair market value of the common shares and
the option exercise price multiplied by the number of options outstanding in
exchange for surrendering its options to the Bank; however, the Committee, in
its sole discretion, may approve or deny the request. Effective March 18, 1997,
the references to "Committee" in this Section 15(e) is replaced by the phrase
"the Board". Effective November 30, 1996, the reference to "Common Shares" in
this Section 15(e) shall refer to common shares of "CNBC Bancorp".
16. PAYMENT FOR COMMON SHARES. Common Shares which are subject to an
option shall be transferred only upon exercise of the option in whole or in part
and upon full payment of the purchase price for the Common Shares as to which
the option is exercised. The option price shall be payable upon exercise of the
option in United States dollars in cash check, bank draft or money order.
Effective November 30, 1996, the reference to "Common Shares" in this Section 16
shall refer to the "common shares of 'CNBC Bancorp'".
17. TERMINATION OF OPTION. Each stock option shall terminate in any
event no later than twenty (20) years from the date of the grant.
18. ASSIGNABILITY. An option granted under the Plan may not be
transferred except by will or the laws of descent and distribution and, during
the lifetime of the option holder to whom granted, may be exercised only by him
or her, his or her guardian or legal representative.
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19. LAWS AND REGULATIONS.
(a) The Plan and all options granted pursuant to it are subject to
all laws and regulations of any governmental authority which may be applicable
thereof, and notwithstanding any provisions of this Plan or the options granted,
the holder of a stock option shall not be entitled to exercise such option, nor
shall the Bank be obligated to issue any Common Shares or pay any cash under the
Plan to the holder, if such exercise, issuance or payment shall constitute a
violation by the option holder or the Bank of any provisions of any such law or
regulation.
(b) The Bank, in its discretion, may postpone the issuance and
delivery of Common Shares upon any exercise of an option until completion of any
stock exchange listing or registration or other qualification of such Common
Shares under any state or federal law, rule or regulation as the Bank may
consider appropriate; and may require any person exercising an option to make
such representations and furnish such information as it may consider appropriate
in connection with the issuance of the Common Shares in compliance with
applicable law. Under such circumstances, the Bank shall proceed with reasonable
promptness to complete any such listing, registration or other qualification.
(c) Common Shares issued and delivered upon exercise of a stock
option shall be subject to such restrictions on trading, including appropriate
legending of certificates to that effect, as the Bank, in its discretion, shall
determine are necessary to satisfy applicable legal requirements and
obligations.
(d) Effective November 30, 1996, all references in this Section 19
to "Bank" are changed to "CNBC Bancorp" and all references to "Common Shares"
shall refer to "common shares of 'CNBC Bancorp'".
20. SHAREHOLDER RIGHTS. An option holder shall have none of the rights
of a shareholder of the Bank with respect to any Common Shares subject to any
option granted hereunder until such individual shall have exercised the option
and been issued Common Shares therefor. Effective November 30, 1996, all
references in this Section 20 to "Common Shares" shall refer to the "common
shares of 'CNBC Bancorp'".
21. SEVERABILITY. If any provision of the Plan shall cause the Plan to
violate any provision of any applicable law, rule or governmental regulation or
to be considered null and void, such provision shall be severed from the Plan
and shall be null and void or shall be deemed null and void ab initio, as shall
be appropriate or necessary and the Plan shall continue in full force and effect
as such provisions were not part of the Plan.
22. USE OF PROCEEDS. The proceeds received by the Bank from the Sale of
Common Shares pursuant to the options granted under this Plan shall be used for
general corporate purposes. Effective November 30, 1996, all references in this
Section 20 to "Common Shares" shall refer to the "common shares of 'CNBC
Bancorp'".
23. EXPENSES. The expenses of the Plan shall be borne by the Bank.
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