<PAGE> 1
As Filed With the Securities and Exchange Commission
on December 30, 1999
Registration No. 333-
................................................................................
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
................................................................................
CUMBERLAND BANCORP, INCORPORATED
(Exact name of Registrant as Specified in its Charter)
TENNESSEE 62-1297760
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
CUMBERLAND BANCORP,
INCORPORATED 37215
4205 HILLSBORO ROAD, SUITE 212 (Zip Code)
NASHVILLE, TENNESSEE
(Address of Principal Executive Offices)
Cumberland Bancorp, Incorporated 1998 Stock Option Plan
(Full title of the plan)
MARK MCDOWELL
CHIEF ADMINISTRATIVE OFFICER
4205 HILLSBORO ROAD, SUITE 212
NASHVILLE, TENNESSEE
(Name and address of agent for service)
(615) 377-9395
(Telephone number, including area code, of agent for service)
Copy to:
BOB F. THOMPSON, ESQ.
BASS, BERRY & SIMS PLC
2700 FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to offering price aggregate offering Amount of
to be registered be registered per share (1) price (1) registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.50 per share 550,000 shares $12.50 $6,875,000 $1,815.00
=================================================================================================================
</TABLE>
(1) The offering price is estimated solely for the purpose of determining the
amount of the registration fee in accordance with Rule 457(o) under the
Securities Act of 1933, as amended.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by Cumberland Bancorp,
Incorporated (the "Registrant") with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or the Securities Act of
1933, as amended (the "Securities Act") are incorporated herein by reference:
(a) The Registrant's Final Prospectus under Rule 424(b) filed
September 21, 1999 as supplemented October 14, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999 as filed November 15, 1999;
and
(b) The description of the Registrant's Common Stock contained
in the Registrant's Report on Form 8-A filed September 20,
1999.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all shares covered hereby have been sold or which deregisters all such shares
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 of such
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or replaced for
purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (a) such person acted in good faith;
(b) in the case of conduct in an official capacity with the corporation, he
reasonably believed such conduct was in the corporation's best interests; (c) in
all other cases, he reasonably believed that his conduct was at least not
opposed to the best interests of the corporation; and (d) in connection with any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or officer
was adjudged to be liable to the corporation. The TBCA also provides that in
connection with any proceeding charging improper personal
II-1
<PAGE> 3
benefit to an officer or director, no indemnification may be made if such
officer or director is adjudged liable on the basis that such personal benefit
was improperly received. In cases where the director or officer is wholly
successful, on the merits or otherwise, in the defense of any proceeding
instigated because of his or her status as a director or officer of a
corporation, the TBCA mandates that the corporation indemnify the director or
officer against reasonable expenses incurred in the proceeding. The TBCA
provides that a court of competent jurisdiction, unless the corporation's
charter provides otherwise, upon application, may order that an officer or
director be indemnified for reasonable expenses if, in consideration of all
relevant circumstances, the court determines that such individual is fairly and
reasonably entitled to indemnification, notwithstanding the fact that (a) such
officer or director was adjudged liable to the corporation in a proceeding by or
in the right of the corporation; (b) such officer or director was adjudged
liable on the basis that personal benefit was improperly received by him; or (c)
such officer or director breached his duty of care to the corporation.
The Registrant's Charter and Bylaws provide that the Registrant shall
indemnify its directors and officers to the fullest extent permitted by
applicable law. The Registrant's Bylaws provide further that the Registrant
shall advance expenses to each director and officer of the Registrant to the
full extent allowed by the laws of the state of Tennessee, both as now in effect
and as hereafter adopted. Under the Registrant's Charter and Bylaws, such
indemnification and advancement of expenses provisions are not exclusive of any
other right that a director or officer may have or acquire both as to action in
his or her official capacity and as to action in another capacity.
The Registrant believes that its Charter and Bylaw provisions are
necessary to attract and retain qualified persons as directors and officers.
The Registrant has in effect a directors' and officers' liability
insurance policy which provides coverage for its directors and officers. Under
this policy, the insurer agrees to pay, subject to certain exclusions, for any
claim made against a director or officer of the Registrant for a wrongful act by
such director or officer, but only if and to the extent such director or officer
becomes legally obligated to pay such claim.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
See Exhibit Index (Page II-6)
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;
(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 hereof) which
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities would not exceed that which was
registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the
form of prospectus filed with
II-2
<PAGE> 4
the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do
not apply if 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 Exchange Act, that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
B. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act 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 Securities Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Nashville, State of Tennessee, on the 30th day
of December, 1999.
CUMBERLAND BANCORP, INCORPORATED
By: /s/ Joel Porter
-------------------------------------
Joel Porter, President
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Joel Porter and Tom Paschal his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Joel Porter President (Principal Executive December 30, 1999
- ------------------------------ Officer) and Director
Joel Porter
/s/ Mark McDowell Chief Administrative Officer December 30, 1999
- ------------------------------ (Principal Financial and
Mark McDowell Accounting Officer)
/s/ John Wilder Chairman December 30, 1999
- ------------------------------
John Wilder
/s/ John S. Everett Director December 30, 1999
- ------------------------------
John S. Everett
/s/ Danny Herron Director December 30, 1999
- ------------------------------
Danny Herron
/s/ Tom E. Paschal Director December 30, 1999
- ------------------------------
Tom E. Paschal
/s/ Tom Brooks Director December 30, 1999
- ------------------------------
Tom Brooks
</TABLE>
II-4
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ Jerry Cole Director December 30, 1999
- ------------------------------
Jerry Cole
/s/ Ronald Gibson Director December 30, 1999
- ------------------------------
Ronald Gibson
/s/ Frank Inman, Jr. Director December 30, 1999
- ------------------------------
Frank Inman, Jr.
/s/ Alex Richmond Director December 30, 1999
- ------------------------------
Alex Richmond
/s/ Wayne Rodgers Director December 30, 1999
- ------------------------------
Wayne Rodgers
/s/ John S. Shepherd Director December 30, 1999
- ------------------------------
John S. Shepherd
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Exhibit Description
- --------- -----------------------------------------------------------
<S> <C>
4 Cumberland Bancorp, Incorporated 1998 Stock Option Plan
(included under Exhibit 10.1 to the Registrant's Form S-1/A
filed September 8, 1999 which is incorporated by reference
herein)
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Heathcott & Mullaly, P.C.
23.2 Consent of Maggart & Associates, P.C.
23.3 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24 Power of Attorney (included at pages II-4 and II-5)
</TABLE>
II-6
<PAGE> 1
Exhibit 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
December 30, 1999
Cumberland Bancorp, Incorporated
4205 Hillsboro Road, Suite 212
Nashville, Tennessee 37215
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a registration
statement on Form S-8 (the "Registration Statement") relating to the Cumberland
Bancorp, Incorporated 1998 Stock Option Plan (the "Plan"), filed by you with the
Securities and Exchange Commission covering 550,000 shares of the Company's
common stock (the "Shares"), issuable pursuant to the Plan. In so acting, we
have examined and relied upon such records, documents and other instruments as
in our judgment are necessary or appropriate in order to express the opinion
hereinafter set forth and have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity to
the original documents of all documents submitted to us as certified or
photostatic copies.
Based upon the foregoing, we are of the opinion that the Shares, when
issued pursuant to and in accordance with the Plan, will be duly and validly
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
-----------------------------------
<PAGE> 1
EXHIBIT 23.1
[HEATHCOTT & MULLALY LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Cumberland Bancorp, Incorporated 1998
Stock Option Plan of our report dated March 19, 1999 with respect to the
consolidated financial statements of Cumberland Bancorp, Incorporated included
in the Cumberland Bancorp, Incorporated Registration Statement on Form S-1
(No. 333-84173), and to the reference to our firm under the caption "Experts"
in the Cumberland Bancorp, Incorporated Registration Statement on Form S-1
(No. 333-84173).
/s/ Heathcott & Mullaly, P.C.
Brentwood, Tennessee
December 29, 1999
<PAGE> 1
EXHIBIT 23.2
[MAGGART & ASSOCIATES LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Cumberland Bancorp, Incorporated 1998
Stock Option Plan of our report dated March 29, 1997 (which expenses a qualified
opinion and includes an explanatory paragraph relating to our inability to
obtain audited financial statements supporting the Company's investment in
Cumberland Life Insurance Company stated at $226,166 at December 31, 1996, or
its equity in Cumberland Life Insurance Company's earning of $1,166 which is
included in net earnings for the year then ended; nor were we able to satisfy
ourselves about the carrying value of the investment or the equity in its
earnings by other auditing procedures) with respect to the consolidated
financial statements of Cumberland Bancorp, Incorporated included in the
Cumberland Bancorp, Incorporated Registration Statement on Form S-1 (No.
333-84173), and to the reference to our firm under the caption "Experts" in the
Cumberland Bancorp, Incorporated Registration Statement on Form S-1 (No.
333-84173).
/s/ Maggart & Associates, P.C.
--------------------------------
Nashville, Tennessee
December 29, 1999
