Registration No. 333-55961
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
--------------------------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
on
FORM S-8
To
REGISTRATION STATEMENT ON FORM S-4
UNDER
THE SECURITIES ACT OF 1933
--------------------------------------
CNB BANCSHARES, INC.
--------------------------------------
(Exact Name of Registrant as Specified in Charter)
Indiana 35-1568731
- ----------------------------------- -----------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
20 N.W. Third Street, Evansville, Indiana 47739 (812) 456-3400
---------------------------------------------------------------
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
NATIONAL BANCORP STOCK OPTION PLAN
----------------------------------
(Full title of plan)
-----------------------------------------------
JOHN R. SPRUILL
Executive Vice President and Chief Financial Officer
CNB Bancshares, Inc.
20 N.W. Third Street
Evansville, Indiana 47739
(812) 456-3400
-----------------------------------------------
(Name, address, including zip code,
and telephone number, including
area code, of agent for service)
Copies to:
THOMAS C. ERB, Esq.
Lewis, Rice & Fingersh, L.C.
500 North Broadway
St. Louis, Missouri 63102
(314) 444-7600
This Post-Effective Amendment No. 1 covers 29,394 shares of the Registrants'
Common Stock originally registered on the Registration Statement on Form S-4 to
which this is an amendment. The registration fees in respect of such shares of
Common Stock were paid at the time of the original filing of the Registration
Statement on Form S-4 relating thereto.
================================================================================
Page
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting a Prospectus (a "Prospectus") with respect to
this Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on
Form S-4 of CNB Bancshares, Inc. (the "Registrant") are kept on file at the
offices of the Registrant in accordance with Rule 428 promulgated pursuant to
the Securities Act of 1933, as amended (the "Securities Act"). The Registrant
will provide without charge to participants in the National Bancorp Stock Option
Plan (the "Plan"), on the written or oral request of any such person, a copy of
any or all of the documents constituting a Prospectus. Written requests for
such copies should be directed to Ms. Kathryn P. Williams, CNB Bancshares, Inc.,
20 N.W. Third Street, Evansville, Indiana 47739. Telephone requests may be
directed to (812) 456-3400.
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
------------------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which the Registrant has previously filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference herein:
(a) The Annual Report of the Registrant on Form 10-K for the fiscal year
ended December 31, 1997, as filed with the Commission pursuant to Section 13(a)
of the Exchange Act;
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1997;
(c) The description of the Registrant's common stock (the "Common Stock")
contained in the Registrant's Registration Statement on Form 8-A, dated April 1,
1996, filed pursuant to Section 12 of the Exchange Act and including any
amendments or reports filed by the Registrant under the Securities Act of 1933,
as amended, or the Exchange Act for purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, subsequent to
the effectiveness of this Registration Statement and prior to the filing of a
post-effective amendment hereto that either indicates that all securities
offered hereby have been sold or that deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
The Registrant will provide without charge to each person to whom a
Prospectus constituting a part of this Registration Statement is delivered, on
the written or oral request of any such person, a copy of any or all of the
documents incorporated herein by reference (other than exhibits to such
documents which are not specifically incorporated by reference in such
documents). Written requests for such copies should be directed to Ms. Kathryn
P. Williams, CNB Bancshares, Inc., 20 N.W. Third Street, Evansville, Indiana
47739. Telephone requests may be directed to (812) 456-3400.
ITEM 4. DESCRIPTION OF SECURITIES.
This item is inapplicable as the securities to be offered are registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the Plan and the shares of Common
Stock to be issued through the Plan have been passed upon for the Registrant by
Lewis, Rice & Fingersh, L.C., St. Louis,
II-1
Missouri 63102. Lewis, Rice & Fingersh, L.C. was not employed for such
purposes on a contingent basis. Lewis, Rice & Fingersh, L.C. did not have
or receive nor will it receive a substantial interest, direct or indirect,
in the Registrant or any of its subsidiaries in connection with the offering.
Lewis, Rice & Fingersh, L.C. was not connected with the Registrant or any
of its subsidiaries as a promoter, managing underwriter, voting trustee,
director, officer, or employee.
The consolidated financial statements of the Registrant as of December 31,
1997 and 1996, and for each of the years in the three year period ended December
31, 1997, included in the Registrant's Annual Report on Form 10-K, and the
supplemental consolidated financial statements of the Registrant as of December
31, 1997 and 1996, and for each of the years in the three year period ended
December 31, 1997, included in the Registrant's Current Report on Form 8-K dated
June 3, 1998 (as amended by the Registrant's Current Report on Form 8-K/A filed
with the Commission on June 16, 1998), have been audited by KPMG Peat Marwick
LLP, independent certified public accountants, as set forth in their report
thereon and included therein. KPMG Peat Marwick LLP was not employed for such
purpose on a contingent basis.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Registrant provide that the Registrant shall indemnify
any director or officer of the Registrant against any and all liability and
reasonable expense that said director or officer may incur in connection with or
resulting from any claim, action, suit or proceeding, or civil, criminal,
administrative or investigative action, or threat thereof, by reason of said
director's or officer's being or having been a director or officer of the
Registrant, or serving or having served at the request of the Registrant as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, if either (i) the officer or director is wholly successful in
any such claim, action, suit or proceeding, or (ii) the officer or director is
not wholly successful but it is nevertheless determined that such officer or
director acted in good faith in what he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, either said officer or director had reasonable
cause to believe his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful. The Bylaws further provide that the board of
directors may (i) authorize like indemnification of persons who are not
directors or officers of the Registrant but are employees of the Registrant or
are officers, directors or employees of any subsidiary of the Registrant, and
(ii) approve indemnification of directors, officers or other persons to the full
extent permitted by the Indiana Business Corporation Law (the "Indiana Law") in
effect at such time.
Section 23-1-37-9 of the Indiana Law provides for "mandatory
indemnification," unless limited by the articles of incorporation, by a
corporation against reasonable expenses incurred by a director who is wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party by reason of the director being or having been a
director of the corporation. Section 23-1-37-10 of the Indiana Law states that
a corporation may, in advance of the final disposition of a proceeding,
reimburse reasonable expenses incurred by a director who is a party to a
proceeding if the director furnishes the corporation with a written affirmation
of the director's good faith belief that the director has met the standard of
conduct required by Section 23-1-37-8 of the Indiana Law, that the director will
repay the advance if it is ultimately determined that he did not meet the
standard of conduct required by Section 23-1-37-8 of the Indiana Law, and that
those making the decision to reimburse the director determine that the facts
then known would not preclude indemnification under the Indiana Law.
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The Registrant's Bylaws further provide, in accordance with the Indiana
Law, that the Registrant shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Registrant, or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Registrant would have power to indemnify him against such
liability under the Bylaws or the Indiana Law. Pursuant to a policy of
directors' and officers' liability insurance with total bi-annual limits of
$15,000,000, the Registrant's directors and officers are insured, subject to the
limits, retention, exceptions and other terms and conditions of such policy,
against liability for any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted while acting in their capacities as directors or officers of the
Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
This item is inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are submitted herewith or incorporated by reference
herein.
Exhibit
Number Exhibit
------ -------
3(a) Restated Articles of Incorporation of CNB Bancshares, Inc.,
incorporated herein by reference to Exhibit 3(a) to CNB
Bancshares, Inc.'s Registration Statement on Form S-8 POS dated
May 18, 1998 (Registration Statement No. 333-46837).
3(b) Amended Bylaws of CNB Bancshares, Inc., incorporated herein by
reference to Exhibit 3(ii) to CNB Bancshares, Inc.'s 1995 Annual
Report on Form 10-K.
5 Opinion of Lewis, Rice & Fingersh, L.C.*
10(a) National Bancorp Stock Option Plan.
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included in
Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.*
- ------------------
* Previously filed as an exhibit to the Registrant's Registration Statement on
Form S-4 to which this is Post-Effective Amendment No. 1.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
II-3
(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 (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 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 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 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.
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SIGNATURES
THE REGISTRANT. 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 Post-Effective Amendment No. 1 to the Registration Statement on
Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Evansville, State of Indiana, on August 25, 1998.
CNB BANCSHARES, INC.
--------------------------------------
(Registrant)
By: /s/ James J. Giancola
--------------------------------------
James J. Giancola
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on August 25, 1998 by the following
persons in the capacities indicated.
Name Title/Position
- ---- --------------
* Chairman of the Board
- ------------------------------
H. Lee Cooper III
*
- ------------------------------ President, Chief Executive Officer
James J. Giancola and Director (principal executive officer)
*
- ------------------------------ Executive Vice President
John R. Spruill (principal financial officer)
*
- ------------------------------ Senior Vice President and
Ralph L. Alley Controller, Treasurer (principal
accounting officer)
* Director
- ------------------------------
John D. Engelbrecht
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* Director
- ------------------------------
Terrence A. Friedman
* Director
- ------------------------------
Edmund L. Hafer
* Director
- ------------------------------
James E. Hutton
* Director
- ------------------------------
Robert L. Koch, II
* Director
- ------------------------------
Larry J. Kremer
* Director
- ------------------------------
Burkley F. McCarthy
* Director
- ------------------------------
Robert K. Ruxer
* Director
- ------------------------------
Thomas W. Traylor
* Director
- ------------------------------
Alton C. Wendzel
* By /s/ James J. Giancola
---------------------------
Attorney-in-fact
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INDEX TO EXHIBITS
Reg. S-K
Item 601
Exhibit No. Exhibit
- ----------- -------
3(a) Restated Articles of Incorporation of CNB Bancshares, Inc.,
incorporated herein by reference to Exhibit 3(a) to CNB
Bancshares, Inc.'s Registration Statement on Form S-8 POS dated
May 18, 1998 (Registration Statement No. 333-46837).
3(b) Amended Bylaws of CNB Bancshares, Inc., incorporated herein by
reference to Exhibit 3(ii) to CNB Bancshares, Inc.'s 1995 Annual
Report on Form 10-K.
5 Opinion of Lewis, Rice & Fingersh, L.C.*
10(a) National Bancorp Stock Option Plan.
23(a) Consent of Lewis, Rice & Fingersh, L.C. (included in Exhibit 5).
23(b) Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.*
- ------------------------
* Previously filed as an exhibit to the Registrant's Registration Statement on
Form S-4 to which this is Post-Effective Amendment No. 1.
NATIONAL BANCORP
STOCK OPTION PLAN
Section 1 - PURPOSE
-------
National Bancorp (the "Holding Company") hereby establishes a stock option
plan (the "Plan") for the benefit of its employees and the employees of its
subsidiary, Tell City National Bank (the "Bank"), as set forth below.
The Holding Company adopts this compensation program for certain key Bank
employees to, among other things, (a) increase the profitability and growth of
the Bank; (b) provide competitive executive compensation while obtaining the
benefits of tax deferral; (c) attract and retain exceptional personnel and
encourage excellence in the performance of individual responsibilities; and (d)
motivate key employees to contribute to the Bank's success.
Section 2 - DEFINITIONS
-----------
For purposes of the Plan, the following terms shall have the meanings
below unless the context clearly indicates otherwise:
2.1 "BOARD" shall mean the Board of Directors of the Holding Company.
2.2 "CHANGE OF CONTROL" of the Bank shall mean (i) an event or series of
events which have the effect of any "person" as such term is used in Section
13(d) and 14(d) of the Exchange Act becoming the "beneficial owner" as defined
in Rule 13d-3 under the Exchange Act, directly or indirectly, of securities of
the Holding Company or the Bank representing 30% or more of the combined voting
power of the Bank or the Holding Company's then outstanding stock; (ii) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the board of directors of the Holding Company cease for any
reason to constitute a majority thereof, unless the election, or the nomination
for election by the stockholders, of each new director was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of the period: (iii) the business of the Bank or the Holding
Company is disposed of pursuant to a partial or complete liquidation, sale of
assets, or otherwise. A Change in Control shall also be deemed to occur if (i)
the Holding Company enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control, (ii) any person (including the
Holding Company) publicly announces an intention to take or to consider taking
actions which have consummated would constitute a Change in Control, or (iii)
the Board adopts a resolution to the effect that a potential Change in Control
for purposes of this Plan has occurred.
2.3 "CHAIRMAN" shall mean the Chairman of the Committee.
2.4 "CODE" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
2.5 "COMMITTEE" means the Benefits Committee of the Board, which shall
administer the Plan and which shall consist of not less than three nor more than
five disinterested persons within the meaning of Rule 16b-3 under the Securities
Exchange Act of 1934.
1
2.6 "DISABILITY" shall mean permanent disability within the meaning of
Section 22(e)(3) of the Code. The determination of the Committee on any
question involving disability shall be conclusive and binding.
2.7 "EMPLOYEE" shall mean an employee of the Holding Company or any of its
Subsidiaries who has been designated by the Committee, under the criteria in
Section 5, as eligible to participate in the Plan.
2.8 "FAIR MARKET VALUE" shall have the meaning specified in Section 6.1.
2.9 "INCENTIVE STOCK OPTION" shall mean an option to purchase Stock
granted under Section 6 of the Plan which is designated as an Incentive Stock
Option and is intended to meet the requirements of Section 422 of the Code.
2.10 "NONQUALIFIED STOCK OPTION" shall mean an option to purchase Stock
granted under Section 6 of the Plan which is not intended to be an Incentive
Stock Option.
2.11 "OPTION" shall mean an Incentive Stock Option or a Nonqualified Stock
Option.
2.12 "OPTION PERIOD" shall mean the period from the date of the grant of an
Option to the date when the Option expires as stated in the terms of the Stock
Option Agreement.
2.13 "OPTIONEE" shall mean an Employee who has been granted an option to
purchase shares of Stock under the provisions of the Plan.
2.14 "PLAN" shall mean this National Bancorp Stock Option Plan.
2.15 "RETIREMENT" shall mean termination of employment with the Holding
Company or any of its Subsidiaries after attaining age 65 (or earlier with the
Holding Company's or the Subsidiary's consent).
2.16 "STOCK" shall mean the Holding Company's voting common stock of no
par value per share.
2.17 "STOCK OPTION AGREEMENT" shall mean an agreement between an Optionee
and the Holding Company covering the specific terms and conditions of an Option.
2.18 "SUBSIDIARY" OR "SUBSIDIARIES" shall mean any corporation which at the
time qualifies as a subsidiary of the Holding Company under the definition of
"subsidiary corporation" in Section 424(f) of the Code.
2.19 "TERMINATION OF EMPLOYMENT" shall be deemed to have occurred at the
close of business on the last day on which an Employee is carried as an active
employee on the records of the Holding Company or any of its Subsidiaries. The
Committee shall determine whether an authorized leave of absence, or other
absence on military or government service, constitutes severance of the
employment relationship between the Holding Company or a Subsidiary and the
Employee.
2
Section 3 - STOCK SUBJECT TO THE PLAN
-------------------------
3.1 Authorized Stock.
---------------- Subject to adjustment as provided in this Section,
the aggregate number of shares of Stock subject to an Option under the Plan
shall be determined at any time to be a number of shares of Stock equal to 6% of
the Stock outstanding from time to time and shall be increased automatically
upon increase of the outstanding shares of Stock provided that the number of
shares covered by Incentive Stock Options shall not exceed 18,700 shares,
subject to adjustment by Section 3.3. Stock delivered under the Plan may
consist, in whole or in part, of authorized and unissued shares or shares
acquired from shareholders upon such terms as the Board deems appropriate for
reserve in connection with exercises hereunder.
3.2 Effect of Expirations.
--------------------- If any Option granted under the Plan expires
or terminates without exercise, the Stock no longer subject to such Option shall
be available to be re-awarded under the Plan.
3.3 Adjustments in Authorized Shares.
-------------------------------- In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up share combination, or other change in the corporate structure
of the Holding Company affecting the number of shares of Stock or the kind of
shares or securities an appropriate and proportionate adjustment shall be made
in the number and kind of shares which may be delivered under the Plan, and in
the number and kind of or price of shares subject to outstanding Options;
provided that the number of shares subject to any Option shall always be a whole
number. Any adjustment of an Incentive Stock Option under this Section shall be
made in such a manner so as not to constitute a "modification" within the
meaning of Section 424(h) of the Code. If the Holding Company shall at any time
merge or consolidate with or into another corporation or association, each
Optionee will thereafter receive, upon the exercise of an Option, the securities
or property to which a holder of the number of shares of Stock then deliverable
upon the exercise of such Option would have been entitled upon such merger or
consolidation, and the Holding Company shall take such steps in connection with
such merger or consolidation as may be necessary to assure that the provisions
of this Plan shall thereafter be applicable, as nearly as is reasonably
possible, in relation to any securities or property thereafter deliverable upon
the exercise of such Option. A sale of all or substantially all the assets of
the Holding Company for a consideration (apart from the assumption of
obligations) consisting primarily of securities shall be deemed a merger or
consolidation for the foregoing purposes, and any merger or consolidation shall
be deemed a Change in Control as defined in Section 2.2.
Section 4 - ADMINISTRATION
--------------
4.1 Committee Governance.
-------------------- This Plan shall be administered by the
Committee. The number of Committee members shall be determined by the Board.
The Board shall add or remove members from the Committee as the Board sees fit,
and vacancies shall be filled by the Board. The Committee shall select one of
its members as the chairperson of the Committee and shall hold meetings at such
times and places as it may determine. The Committee may appoint a secretary and,
subject to the provisions of the Plan and to policies determined by the Board,
may make such rules and regulations for the conduct of its business as it shall
deem advisable. Written action of the Committee may be taken by a majority of
its members, and actions so taken shall be fully effective as if taken by a vote
of a majority of the members at a meeting duly called and held. A majority of
Committee members shall constitute a quorum for purposes of meeting. The act of
a majority of the members present at any meeting for which there is a quorum
shall be a valid act of the Committee.
4.2 Committee to Interpret Plan.
--------------------------- Subject to the express terms and
conditions of the Plan, the Committee shall have sole power to (i) construe and
interpret the Plan; (ii) to establish, amend or waive rules and for its
administration; (iii) to determine and accelerate the exercisability of any
Option: (iv) to
3
correct inconsistencies in the Plan or in any Stock Option Agreement, or any
other instrument relating to an Option; and (v) subject to the provisions of
Section 8, to amend the terms and conditions of any outstanding Option, to the
extent such terms and conditions are within the discretion of the Board as
provided in the Plan. Notwithstanding the foregoing, no action of the Board
may, without the consent of the person or persons entitled to exercise any
outstanding Option, adversely affect the rights of such person or persons.
4.3 Exculpation.
----------- No member of the Board or the Committee shall be liable
for actions or determination made in good faith with respect to the Plan, or for
awards under it.
4.4 Selection of Employee Participants.
---------------------------------- The Board shall have the
authority to grant Options from time to time to such Employees as may be
selected by it.
4.5 Decisions Billing.
----------------- All determinations and decisions made by the Board
pursuant to the provisions of the Plan shall be final, conclusive and binding on
all persons, including the Holding Company, its shareholders, Optionees and
their estates and beneficiaries.
4.6 Stock Option Agreements.
----------------------- Each Option under the Plan shall be
evidenced by a Stock Option Agreement which shall be signed by the Chairman of
the Committee and by the Optionee, and shall contain such terms and conditions
as may be approved by the Committee, which need not be the same in all cases.
Any Stock Option Agreement may be supplemented or amended in writing from time
to time as approved by the Committee, provided that the terms of such Agreements
as amended or supplemented as well as the terms of the original Stock Option
Agreement, are not inconsistent with the provisions of the Plan. An Employee
who receives an Option under the Plan shall not, with respect to the Option, be
deemed to have become an Optionee, or to have any rights with respect to the
Option, unless and until the Employee has executed a Stock Option Agreement or
other instrument evidencing the Option and shall have delivered an executed copy
thereof to the Holding Company, and has otherwise complied with the applicable
terms and conditions of the Option.
Section 5 - ELIGIBILITY
-----------
Employees of the Holding Company and its Subsidiaries who are expected to
contribute substantially to the growth and profitability of the Holding Company
and its Subsidiaries are eligible to receive Options.
Section 6 - GRANT OF OPTIONS
----------------
6.1 Option Price.
------------ The purchase price per share of Stock covered by an
option shall be determined by the Committee but shall not be less than 100% of
the fair market value (the "Fair Market Value") of such Stock on the date the
Option is granted. The Fair Market Value shall be determined by the Committee
in its sole discretion, provided that, if the Holding Company's Stock is
publicly traded on an established securities market, the Fair Market Value shall
be the closing market price of the Holding Company's Stock as reported on the
date of grant, or, if no trades were reported on that date, the closing price on
the most recent trading day immediately preceding the date of the grant. An
Incentive Stock Option granted to any person who, at the time the Option is
granted, owns or is deemed to own within the meaning of Section 424(d) of the
Code, stock possessing more than 10% of the total combined voting power of all
classes of stock of the Holding Company or of its parent or any Subsidiary,
shall have an exercise price which is at least 110% of the Fair Market Value of
the Stock subject to the Option.
6.2 Option Period.
------------- The Option Period shall be determined by the
Committee, but no Option shall be exercisable later than ten years from the date
of grant. Notwithstanding the foregoing, in the case
4
of an Optionee owning (within the meaning of Section 424(d) of the Code), at the
time an Incentive Stock Option is granted, more than 10% of the total combined
voting power of all classes of stock of the Holding Company or any Subsidiary,
such Incentive Stock Option shall not be exercisable later than five years from
the dare of grant. No Option may be exercised at any time unless such Option is
valid and outstanding as provided in this Plan.
6.3 Limitation on Amount of Incentive Stock Options.
----------------------------------------------- The aggregate Fair
Market Value (determined as of the time the Option is granted) of the Stock with
respect to which an Optionee's Incentive Stock Options are exercisable for the
first time during any calendar year (under this and all other stock option plans
of the Holding Company, any Subsidiary or any parent corporation) shall not
exceed $100,000. Options or portions of Options exercisable as a result of
acceleration under Section 10.8 in excess of the $100,000 limit described herein
shall be treated as a Nonqualified Stock Option for tax purposes.
6.4 Nontransferability of Options.
----------------------------- No Option shall be transferable by the
Optionee otherwise than by will or by the laws of descent and distribution, and
such option shall be exercisable, during the Optionee's lifetime, only by the
Optionee.
Section 7 - EXERCISE OF OPTIONS
-------------------
7.1 Exercise.
-------- An option may be exercised, so long as it is valid and
outstanding, from time to time in part or as a whole, subject to any limitations
with respect to the number of shares for which the Option may be exercised at a
particular time and to such other conditions (e.g., exercise could be
conditioned on performance) as the Committee in its discretion may specify upon
granting the Option or as otherwise provided in Section 7.
7.2 Method of Exercise.
------------------ To exercise an Option, the Optionee or the other
person(s) entitled to exercise the Option, shall give written notice of exercise
to the Committee, specifying the number of full shares to be purchased. Such
notice shall be accompanied either by payment in full for the Stock being
purchased plus, in the case of Nonqualified Stock Options, any required
withholding tax as provided in Section 11. If permitted by the Committee, in
its sole discretion, payment in full or in part may be made in the form of Stock
owned by the Optionee for at least 6 months (based on the Fair Market Value of
the Stock on the date the Option is exercised) evidenced by negotiable Stock
certificates registered either in the sole name of the Optionee or the names of
the Optionee and spouse, or by any combination of cash or shares. No shares of
stock shall be issued unless the Optionee has fully complied with the provisions
of this Section 7.2.
7.3 Termination of Employment by Employee.
------------------------------------- After an Employee's
Termination of Employment, an Option may be exercised, subject to adjustment as
provided us Section 3.3 or 10.8, only with respect to the number of shares of
Stock which the Employee could have acquired by an exercise of the Option
immediately before the Termination of Employment but in no event after the
expiration date of the Option as specified in the applicable Stock Option
Agreement. Except to the extent shorter periods are provided in the Stock Option
Agreement by the Committee, an Employee's right to exercise an Option upon
Termination of Employment shall terminate:
5
(i) At the expiration of three months (Incentive Stock
Options) or two years (Nonqualified Stock Options) after
the Retirement provided, however, if an Incentive Stock
Option is not exercised after three months, it will remain
exercisable and be treated as a Nonqualified Stock Option
for purposes of the Plan when it is exercised; or
(ii) At the expiration of one year in the event of Disability of
the Employee; or
(iii)At the expiration of one year after the Employee's death
if the Employee's Termination of Employment occurs by
reason of death; any Option exercised under this
subparagraph (iii) may be exercised in full by the legal
representative of the estate of the Employee or by the
person or persons who acquire the right to exercise such
Option by bequest or inheritance; or
(iv) No later than three months after the Employee's Termination
of Employment for any other reason.
Section 8 - AMENDMENTS AND TERMINATION
--------------------------
8.1 Amendments and Termination.
-------------------------- The Committee may terminate, suspend.
amend or alter the Plan, but no action of the Committee may:
(a) Impair or adversely affect the rights of an Optionee under
an Option, without the Optionee's consent; or,
(b) Without the approval of the shareholders:
(i) Increase the total amount of Stock which may be
delivered under the Plan except as is provided in
Section 3 of the Plan;
(ii) Decrease the option price of any Option to less than
the option price on the date the Option was granted;
(iii)Extend the maximum Option Period, or
(iv) Extend the period during which Options may be granted,
as specified in Section 13.
8.2 Conditions on Options.
--------------------- In granting an Option, the Committee may
establish any conditions that it determines are consistent with the purposes of
the Plan, including. without limitation, a condition that the granting of an
Option is subject to the surrender for cancellation of any or all outstanding
Options held by the Optionee. Any new Option made under this section may
contain such terms and conditions as the Committee may determine, including an
exercise price that is lower than that of any surrendered Option.
8.3 Selective Amendments.
-------------------- Any amendment or alteration of the Plan may be
limited to, or may exclude from its effect, particular classes of Optionees.
6
Section 9 - RESTRICTIONS ON TRANSFER
------------------------
9.1 Restriction on Transfer.
----------------------- No Optionee shall sell, assign, transfer or
otherwise dispose of any of his Option Stock until (i) he has delivered to the
Holding Company an irrevocable written offer to sell any such shares of Option
Stock at any time within 60 days after delivery of the offer and at a price per
share equal to Fair Value (which shall be based on a valuation of the
Corporation's stock based on an appraisal by an independent appraiser selected
and paid by the Corporation, who shall make such determination as of the
Corporation's most recent fiscal year end) divided by the total number of shares
of Stock outstanding as of the date of determination, and (ii) the Holding
Company shall have failed to accept such offer within the 60-penod. To accept
the offer, the Holding Company shall deliver notice of its acceptance of its
offer within 60 days after delivery of offer. Payment for the offered Option
Stock shall be made as provided in Section 9.3. The resections imposed by this
Section 9.1 shall not apply to the transfer by operation of law to a deceased
Optionee's personal representative of the Optionee's interest in the Option
Stock.
9.2 Death, Disability, and Termination.
---------------------------------- In the event an Optionee's
employment is terminated due to his death or Disability, the Optionee or his
personal representative shall offer to sell his Option Stock and the Holding
Company shall purchase his Option Stock at a price per share equal to Fair Value
divided by the total number of shares of Stock outstanding as of the date Fair
Value is determined; in the event an Optionee's employment is terminated for any
other reason the Holding Company may, at its option, for a two year period
following such termination, purchase such Optionee's Option Stock at Fair Value
divided by the total number of Shares of Stock outstanding as of the date Fair
Value is determined. Notwithstanding the preceding sentence, the purchase price
of the Optionee's Option Stock shall be determined as follows if the Optionee
terminates employment for any reason within the twelve month period following a
Change in Control:
(i) If the Change In Control occurs as a result of the sale of
securities of the Bank or the Holding Company for cash, the
purchase price shall be the greater of Fair Value, divided
by the number of shares outstanding as of the date of
determination. or the cash sale price per share of stock
involved in the Change in Control transaction.
(ii) If the Change in Control results in the Option Stock being
converted into the stock of another entity, which stock has
a public securities market, the Optionee shall not be bound
to sell his Option Stock under these stock restrictions and
all restrictions of this Section 9 shall expire. Similarly,
if the Option Stock becomes publicly traceable on an
established securities market, these restrictions on
transfer shall no longer apply and neither the Optionee nor
the Holding Company shall be bound hereby.
Payment for the Option Stock shall be made as provided in Section 9.3.
9.3 Payment for Option Stock.
------------------------ The Holding Company shall make payment in
cash for any Option Stock that it purchases pursuant to this Section 9 within 30
days after the date when the Holding Company delivers notice of its acceptance
of the offer or exercise of an option given pursuant to Section 9.1 or 9.2. The
Optionee shall surrender certificates representing the offered Option Stock at
the time the Holding Company makes such payment.
9.4 Restriction on Pledge.
--------------------- No Optionee shall, without the prior written
consent of the Holding Company, pledge, mortgage or otherwise encumber any of
his Option Stock.
7
Section 10 - GENERAL PROVISIONS
------------------
10.1 Unfunded Status of Plan.
----------------------- The Plan is intended to constitute an
"unfunded" plan for incentive compensation, and the Plan is not intended to
constitute a plan subject to the provisions of the Employee Retirement Income
Security Act of 1974, as amended, and shall not extend, with respect to any
payments not yet made to an Optionee, any rights that are greater than those of
a general creditor of the Holding Company.
10.2 Transfers, Leaves of Absence and Other Changes in Employment Status.
-------------------------------------------------------------------
For purposes of the Plan (i) a transfer of an Employee from the Holding Company
to a Subsidiary, or vice versa, or from one Subsidiary to another; or (ii) a
leave of absence, duly authorized in writing by the Holding Company or a
Subsidiary, for military service or sickness, or for any other purpose approved
by the Holding Company or a Subsidiary if the period of such leave does not
exceed 90 days; or (iii) any leave of absence in excess of 90 days approved by
the Holding Company, shall not be deemed a Termination of Employment. The
Committee, in its sole discretion subject to the terms of the Stock Option
Agreement, shall determine the disposition of all Options made under the Plan in
all cases involving any substantial change in employment status other than as
specified herein.
10.3 Distribution of Stock--Securities Restrictions.
---------------------------------------------- The Committee may
require Optionees receiving Stock pursuant to any Option under the Plan to
represent to and agree with the Holding Company in writing that the Optionee is
acquiring the shares for investment without a view to distribution thereof. No
shares shall be issued or transferred pursuant to an Option unless such issuance
or transfer complies with all relevant provisions of law, including but not
limited to, the (i) limitations, if any, imposed in the state of issuance or
transfer, (ii) restrictions, if any, imposed by the Securities Act of l933, as
amended, and the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, and (iii) requirements of any stock exchange
upon which the Holding Company's shares may then be listed. The certificates
for such shares may include any legend which the Committee deems appropriate to
reflect any restrictions on transfer.
10.4 Assignment Prohibited.
--------------------- Subject to the provisions of the Plan and the
Stock Option Agreement, no Option shall be assigned, transferred, pledged or
otherwise encumbered by the Optionee otherwise than by will or by the laws of
descent and distribution, and such Options shall be exercisable, during the
Optionee's lifetime, only by the Optionee. Options shall not be pledged or
hypothecated in any way, and shall not be subject to any execution, attachment,
or similar process. Any attempted transfer, assignment, pledge, hypothecation
or other disposition of an Option contrary to the provisions of the Plan, or the
levy of any process upon an Option, shall be null, void and without effect.
10.5 Other Compensation Plans.
------------------------ Nothing contained in the Plan shall prevent
the Holding Company from adopting other compensation arrangements, subject to
stockholder approval if such approval is required.
10.6 Authority Limited to Board or the Committee.
------------------------------------------- No person shall at any
time have any right to receive an Option hereunder and no person shall have
authority to enter into an agreement on behalf of the Holding Company for the
granting of an Option or to make any representation or warranty with respect
thereto, except as granted by the Board or the Committee. Optionees shall have
no rights in respect to any Option except as set forth in the Plan and the
applicable Stock Option Agreement.
10.7 No Right to Employment.
---------------------- Neither the action of the Holding Company in
establishing the Plan, nor any action taken by it or by the Board or the
Committee under the Plan or any Stock Option
8
Agreement, or any provision of the Plan, shall be construed as giving to any
person the right to be retained in the employ of the Holding Company or any
Subsidiary.
10.8 Change of Control.
----------------- If granted by Committee in the Stock Option
Agreement, in the event of a Change of Control, Options granted under the Plan
shall become exercisable in full whether or not otherwise exercisable at such
time, and any such Options shall remain exercisable in full thereafter until it
expires pursuant to its terms.
10.9 Option Period.
------------- No Option granted under the Plan shall be exercisable
or payable more than 10 years from the date of grant.
10.10 Nor a Shareholder.
----------------- The person or persons entitled to exercise, or
who have exercised, an Option shall not be entitled to any rights as a
shareholder of the Holding Company with respect to any shares subject to the
Option until such person or persons shall have become the holder of record of
such shares.
Section 11 - TAXES
-----
11.1 Tax Withholding.
--------------- All Optionees shall make arrangements satisfactory
to the Committee to pay to the Holding Company, at the time of exercise in the
case of a Nonqualified Stock Option, any federal, state or local taxes required
to be withheld with respect to such shares. If such Optionee shall fail to make
such tax payments as are required, the Holding Company and its Subsidiaries
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment of any kind otherwise due to the Optionee.
11.2 Share Withholding.
----------------- If permitted by the Committee, the tax withholding
obligation may be satisfied by the Holding Company retaining shares of Stock
with a fair market value equal to the amount required to be withheld.
Section 12 - EFFECTIVE DATE OF PLAN
----------------------
The Plan shall be effective on the date (the "Effective Date") when the
Board adopts the Plan, subject to approval of the Plan by a majority of the
total votes eligible to be cast at a meeting of shareholders following adoption
of the Plan by the Board, which vote shall be taken within 12 months of the
Effective Date; provided, however, that Options may be granted before obtaining
shareholder approval of the Plan, but any such Options shall be contingent upon
such shareholder approval being obtained and may not be exercised before such
approval.
Section 13 - TERM OF PLAN
------------
Unless terminated earlier by the Committee, no Option shall be granted
under the Plan more than ten years after the Effective Date as defined in
Section 12.
9
[On letterhead of KPMG Peat Marwick LLP]
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
CNB Bancshares, Inc.:
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 on Form S-8 to registration statement No. 333-55961 on Form S-4 of CNB
Bancshares, Inc. of our reports dated January 14, 1998, relating to the
consolidated balance sheets of CNB Bancshares, Inc. and subsidiaries as of
December 31, 1997 and 1996 and the related consolidated statements of income,
changes in stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1997, which report is included in the
December 31, 1997 annual report on Form 10-K of CNB Bancshares, Inc., and June
1, 1998, relating to the supplemental consolidated balance sheets of CNB
Bancshares, Inc. and subsidiaries as of December 31, 1997 and 1996, and the
related supplemental consolidated statements of income, changes in shareholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1997, which report is included in the Current Report on Form 8-K
dated June 3, 1998 (as amended by the Current Report on Form 8-K/A filed with
the Securities and Exchange Commission on June 16, 1998).
/s/ KPMG Peat Marwick LLP
St. Louis Missouri
August 19, 1998
