SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CNB BANCORP, INC.
(Exact Name of Registrant as specified in its Articles of Incorporation)
New York 14-1709485
(State of Incorporation) (IRS Employer Identification No.)
12-24 N. Main Street
P. O. Box 873
Gloversville, New York 12078
(Address of principal executive offices, including zip code)
Options to purchase Common Stock of the Registrant issued by the
Registrant pursuant to an Agreement of Merger, dated as of January 23, 1999,
by and among the Registrant, CNB Acquisition Corp., and Adirondack Financial
Services Bancorp, Inc. ("Adirondack"), upon conversion of outstanding options
to purchase Common Stock of Adirondack issued by Adirondack under the
Adirondack Financial Services Bancorp, Inc. 1998 Stock Option and Incentive
Plan.
(Full Titles of Plans)
Mr. George A. Morgan
Executive Vice President
CNB Bancorp, Inc.
12-24 North Main Street
Gloversville, New York 12078
(518) 773-7911
(Name and address of agent for service)
Copies to:
Edwin L. Herbert, Esq.
Werner & Blank Co., L.P.A.
7205 West Central Avenue
Toledo, Ohio 43617
(419) 841-8051
CALCUATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering
to be Registered Registered(1) per Share(3) Price(3)
- ---------------------------------------------------------------------------
Common Stock, 23,749(2) $22.826 $542,095
par value $2.50
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares of common stock, par value $2.50 per
share ("Common Stock"), of CNB Bancorp, Inc. (the "Company" or "Registrant")
registered hereby as a result of a stock split, stock dividend or similar
adjustment of the outstanding Common Stock.
(2) Represents the number of shares of Common Stock of the Company reserved
for issuance as a result of the conversion of options to purchase common
stock of Adirondack Financial Services Bancorp, Inc. ("Adirondack") into
options to purchase Common Stock of the Company pursuant to an Agreement of
Merger, dated as of January 23, 1999, by and among the Company, CNB
Acquisition Corp. and Adirondack.
(3) Estimated solely for the purpose of calculating the registration fee,
which has been calculated pursuant to Rule 457(h) promulgated under the
Securities Act of 1933, as amended ("Securities Act"). The Proposed Maximum
Offering Price Per Share is equal to the exercise price per share for the
options, as converted, to purchase shares of Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
(b) All reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), since
the end of the fiscal year covered by the Form 10-K referred to in clause (a)
above.
(c) The description of the Common Stock of the Company contained in the
Company's Current Report on Form 8-K filed on July 16, 1999.
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which reregisters all securities then remaining
unsold.
Item 4. Description of Securities
Not applicable because the Common Stock is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under the New York Business Corporation Law ("NYBCL"), a corporation may
indemnify its directors and officers made, or threatened to be made, a party
to any action or proceeding, except for stock holder derivative suits, if
such director or officer acted in good faith, for a purpose which he or she
reasonably believed to be in or, in the case of service to another
corporation or enterprise, not opposed to, the best interests of the
corporation, and, in criminal proceedings, had no reasonable cause to believe
his or her conduct was unlawful. In the case of stockholder derivative suits,
the corporation may indemnify a director or officer if he or she acted in
good faith for a purpose which he or she reasonably believed to be in or, in
the case of service to another corporation or enterprise, not opposed to the
best interests of the corporation, except that no indemnification may be made
in respect of (i) a threatened action, or a pending action which is settled
or otherwise disposed of, or (ii) any claim, issue or matter as to which such
person has been adjudged to be liable to the corporation, unless and only to
the extent that the court in which the action was brought, or, if no action
was brought, any court of competent jurisdiction, determines upon application
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount
and expenses as the court deems proper.
<PAGE>
Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered
by a court pursuant to the NYBCL, any indemnification under the NYBCL
pursuant to the above paragraph may be made only if authorized in the
specific case and after a finding that the director or officer met the
requisite standard of conduct by (i) the disinterested directors if a quorum
is available, (ii) the board upon the written opinion of independent legal
counsel or (iii) the stockholders.
The indemnification described above under the NYBCL is not exclusive of
other indemnification rights to which a director or officer may be entitled,
whether contained in the certificate of incorporation or bylaws or when
authorized by (i) such certificate of incorporation or bylaws; (ii) a
resolution of stockholders, (iii) a resolution of directors or (iv) an
agreement providing for such indemnification, provided that no
indemnification may be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled.
Article V of the Bylaws of the Company provides that the directors,
officers, employees and agents of the Company shall be indemnified to the
fullest extent permitted by the NYBCL. Such indemnity shall extend to
expenses, including attorney's fees, judgments, fines and amounts paid in the
settlement, prosecution or defense of the foregoing actions. Directors and
officers also may be indemnified pursuant to the terms of various employee
benefit plans of the Company. In addition, the Company carries a liability
insurance policy for its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable because no restricted securities will be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this Registration Statement on Form S-8:
Number Exhibit
4* Certificate of Incorporation of CNB Bancorp, Inc.
5 Opinion of Werner & Blank Co., L.P.A. as to the
legality of the securities
23.1 Consent of Werner & Blank Co., L.P.A.
(contained in the opinion included as Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
* Incorporated by reference to the Registrant's filing on Form 10-K dated
March 24, 1989.
<PAGE>
Item 9. Undertakings.
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 in 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, 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 in such information in the
Registration Statement; provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses 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 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 hereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
4. That, for the 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 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.
5. 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
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
<PAGE>
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 Gloversville, State of New York, on
June 28, 1999.
CNB Bancorp, Inc.
By: /s/ William N. Smith
------------------------------------
William N. Smith, Chairman, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Timothy E. Delaney Director June 28, 1999
/s/Clark Easterly, Sr. Director June 28, 1999
/s/Brian K. Hanaburgh Director June 28, 1999
/s/Theodore E. Hoye, III Director June 28, 1999
/s/Robert L. Maider Director June 28, 1999
/s/John C. Miller Director June 28, 1999
/s/George A. Morgan Executive Vice President, June 28, 1999
Secretary and Director
(Principal Financial Officer)
/s/Frank E. Perrella Director June 28, 1999
/s/Deborah H. Rose Director June 28, 1999
/s/Richard D. Ruby Director June 28, 1999
/s/William N. Smith Chairman, President and June 28, 1999
Chief Executive Officer
(Principal Executive Officer)
/s/Clark D. Subik Director June 28, 1999
<PAGE>
Exhibit 5
Opinion of Werner & Blank Co., L.P.A.
as to the legality of the securities
Board of Directors
CNB Bancorp, Inc.
12-24 N. Main Street
Gloversville, New York 12078
Re: Registration Statement on Form S-8
23,749 Shares of Common Stock
Ladies and Gentlemen:
We have acted as special counsel to CNB Bancorp, Inc., a New York
corporation (the "Corporation"), in connection with the preparation and
filing with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, of a Registration Statement on Form S-8 (the
"Registration Statement"), relating to the registration of up to 23,749
shares of common stock, par value $2.50 per share ("Common Stock"), to be
issued upon exercise of options previously granted by Adirondack Financial
Services Bancorp, Inc. ("Adirondack") pursuant to its 1998 Stock Option and
Incentive Plan (the "Plan"), and converted into options to purchase Common
Stock of the Corporation (the "Options") upon the acquisition of Adirondack
by the Corporation on June 1, 1999 pursuant to an Agreement of Merger, dated
as of January 23, 1999, by and among the Corporation, CNB Acquisition Corp.
and Adirondack (the "Agreement"). The Registration Statement also registers
an indeterminate number of additional shares which may be necessary to adjust
the number of shares registered thereby for issuance as the result or a stock
split, stock dividend or similar adjustment of the outstanding Common Stock.
We have been requested to furnish an opinion to be included as an exhibit to
the Registration Statement.
In this regard, we have reviewed the Registration Statement and
Prospectus for the Plan, the Articles of Incorporation and Bylaws of the
Corporation, the Plan, the Agreement, a specimen stock certificate evidencing
the Common Stock of the Corporation and such other corporate records and
documents as we have deemed appropriate for the purposes of this opinion. We
are relying upon the originals, or copies certified or otherwise identified
to our satisfaction, of the corporate records of public officials, officers
and representatives of the Corporation as we have deemed applicable or
relevant as a basis for the opinion set forth below. In addition, we have
assumed, without independent verification, the genuineness of all signatures
and the authenticity of all documents furnished to us and the conformance in
all respect of copies to originals. Furthermore, we have made such factual
inquiries and reviewed such laws as we determined to be relevant for the
purposes of this opinion.
For purposes of this opinion, we have also assumed that (i) the shares
of Common Stock issuable pursuant to the exercise of the Options will
continue to be validly authorized on the dates the Common Stock is issued
pursuant to the exercise of the Options; (ii) on the dates the Options are
exercised, the Options will constitute valid, legal and binding obligations
of the Corporation and will (subject to applicable bankruptcy, moratorium,
insolvency, reorganization and other laws and legal principles affecting the
enforceability of creditors' rights generally) be enforceable as to the
Corporation in accordance with their terms; (iii) no change occurs in
applicable law or the pertinent facts; and (iv) the provisions of "blue sky"
and other securities laws as may be applicable have been complied with to the
extent required.
<PAGE>
Based on the foregoing, and subject to the assumption set forth herein,
we are of the opinion as of the date hereof that the shares of Common Stock
to be issued pursuant to the exercise of the Options, upon receipt by the
Corporation of the consideration required thereby, will be legally issued,
fully paid and non-assessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
WERNER & BLANK CO., L.P.A.
<PAGE>
Exhibit 23.2
Consent of KPMG, LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of CNB Bancorp, Inc. of our report, dated February 5,
1999, incorporated by reference in the December 31, 1998 Annual Report on
Form 10-K of CNB Bancorp, Inc.
