As Filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-
-------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------------
CNB BANCSHARES, INC.
(Exact name of Registrant as Specified in Its Charter)
INDIANA 6022 35-1568731
(State of Other Jurisdiction (Primary Standard IRS Employer
of Incorporation or Industrial Classification Identification
Organization) Code Number) Number
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)
-----------------------------
JOHN R. SPRUILL
Executive Vice President and Chief Financial and Administrative 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 N. Broadway, Suite 2000
St. Louis, Missouri 63102
(314) 444-7600
----------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
IF THE SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED IN CONNECTION
WITH THE FORMATION OF A HOLDING COMPANY AND THERE IS COMPLIANCE WITH GENERAL
INSTRUCTION G, CHECK THE FOLLOWING BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. [X]
----------------------------
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum
of Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered Per Unit Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------
common stock, no par value per share 250,000 $40.5313(1) $10,132,825 $2,989.18
=================================================================================================================
<FN>
(1) The registration fee was computed pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
based upon the average of the high ($41.125) and low ($39.9375) of a share of common stock of CNB Bancshares, Inc.
on the New York Stock Exchange on May 14, 1999.
---------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
Prospectus
[logo] CNB BANCSHARES, INC.
250,000 Shares
common Stock
- - We are a bank holding company headquartered in Evansville, Indiana, with
banking operations in Indiana, Illinois, Michigan, Kentucky and Tennessee.
- - Our common stock is traded on the New York Stock Exchange under the symbol
"BNK".
- - We may use this Prospectus from time to time to issue our common stock to the
owners of certain businesses that we may acquire in the future that are
primarily engaged in activities related to banking and insurance and related
activities.
- - Negotiations with the owners of the businesses we may acquire will determine
the specific terms and conditions upon which we will issue the common stock
offered by this Prospectus.
- - We expect that the price of the shares of our common stock we issue in an
acquisition will be reasonably related to the prevailing market price of our
common stock at or near the time we enter into an acquisition agreement with
the owners of the business or consummate the acquisition and issue the shares
of our common stock.
-----------------------------
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS
BEGINNING ON PAGE 8 BEFORE MAKING ANY INVESTMENT IN OUR COMPANY.
-----------------------------
The shares of common stock offered by this Prospectus are not savings or
deposit accounts or other obligations of a bank and are not insured by the
Federal Deposit Insurance Corporation or any other governmental agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved our common stock offered by this Prospectus or
determined that this Prospectus is accurate or complete. Any representation to
the contrary is a criminal offense.
, 1999
--------
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS 1
WHERE YOU CAN FIND MORE INFORMATION 1
INCORPORATION BY REFERENCE 1
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS 2
DESCRIPTION OF THE COMPANY 4
SELECTED FINANCIAL DATA 6
PRICE RANGE OF COMMON STOCK AND DIVIDENDS 7
RISK FACTORS 8
ACQUISITION TERMS 10
SELLING SHAREHOLDERS 11
RESTRICTIONS ON RESALE OF COMMON STOCK 11
USE OF PROCEEDS 12
DESCRIPTION OF CAPITAL STOCK 12
LEGAL OPINION 18
EXPERTS 18
i
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement we filed with the
Securities and Exchange Commission (SEC) utilizing a "shelf" registration
process. Under this shelf registration process, we may, over the next two
years, issue the shares of common stock described in this Prospectus to the
owners of certain businesses we may acquire in the future. This Prospectus
provides you with a general description of our Company and our common stock.
Each time we issue our common stock as part of an acquisition, we will provide a
Prospectus Supplement, if required by the rules of the SEC, that contains the
terms of the acquisition. Such Prospectus Supplement may also add, update or
change the information contained in this Prospectus. You should read both this
Prospectus and any Prospectus Supplement together with all additional
information described in the WHERE YOU CAN FIND MORE INFORMATION section of this
Prospectus.
You should rely only on the information provided in this Prospectus or
incorporated by reference into this Prospectus. We have not authorized anyone
else to provide you with different information. We are not making an offer of
our common stock in any state where the offer is not permitted. Information is
accurate only as of the date of the documents containing the information, unless
the information specifically indicates that another date applies.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy (upon the payment of fees
prescribed by the SEC) any document that we file with the SEC at its public
reference rooms in Washington, D.C. (450 Fifth Street, N.W. 20549), New York,
New York (7 World Trade Center, Suite 1300, 10048) and Chicago, Illinois (500
West Madison Street, Suite 1400, 60661). You may call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our filings also are
available to the public on the internet through the SEC's EDGAR database which
may be accessed at the SEC's web site at http://www.sec.gov. Our common stock
is traded on the New York Stock Exchange, Inc. (NYSE), and certain reports,
proxy statements and other information is also available for inspection and
copying at prescribed rates at the offices of the NYSE (20 Broad Street, New
York, New York 10005).
As permitted by SEC rules, this Prospectus does not contain all the
information contained in the Registration Statement and accompanying exhibits
and schedules we filed with the SEC. You may refer to the Registration
Statement, the exhibits and schedules for more information about our Company and
our common stock. The Registration Statement, exhibits and schedules are
available at the SEC's public reference rooms or through its EDGAR database on
the internet.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" into this Prospectus the
information we file with the SEC. This means that we can disclose important
business, financial and other information in our SEC filings by referring you to
the documents containing such information. All information incorporated by
reference is part of this Prospectus, unless and until that information is
updated and superseded by the information contained in this Prospectus or any
information incorporated into this Prospectus at a later date. Any information
we subsequently file with the SEC that is incorporated by reference will
automatically update and supersede any previous information that is part of this
Prospectus. We incorporate by reference into this Prospectus (i) the documents
listed below, and (ii) any future filings we
1
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we issue all the common stock offered by this
Prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1998; and
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and
- The description of our common stock contained in Form 8-A that we filed
with the SEC on April 1, 1996, along with any future update of the
description that we file.
You may obtain a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Investor Relations Office
CNB Bancshares, Inc.
20 N.W. Third Street
Evansville, Indiana 47739
(812) 456-3400
To ensure timely delivery of these materials, you should make any request
no later than five business days prior to the date on which you intend to vote
on or otherwise consent to or approve of our acquisition of your business.
Materials will be sent via first class mail within one business day after we
receive a request.
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus in the RISK FACTORS section
and the documents incorporated by reference into this Prospectus may constitute
"forward-looking statements" within the meaning of federal securities laws.
Forward-looking statements are based on our management's beliefs, assumptions,
and expectations of the Company's future economic performance, taking into
account the information currently available to them. Forward-looking statements
are not statements of historical fact. Forward-looking statements involve risks
and uncertainties that may cause our Company's actual results, performance or
financial condition to be materially different from the expectations of future
results, performance or financial condition we express or imply in any
forward-looking statements. Some of the important factors and events that could
cause our actual results, performance or financial condition to differ
materially from our expectations include:
- our success in implementing our business strategy;
- the extent to which the cost savings that we expect from future and
recently completed or announced acquisitions are fully realized and the
extent to which revenues and expenses following such acquisitions meet
our expectations;
- changes in the interest rate environment that reduce our margins;
- legislation or regulatory requirements or changes that adversely affect
the banking businesses in which we are engaged;
- adverse changes in business conditions and inflation;
2
- general economic conditions, either nationally or regionally, which are
less favorable than expected and that result in, among other things, a
deterioration in our credit quality;
- competitive pressures among financial institutions increase
significantly;
- changes in the securities markets;
- actions of our competitors and our ability to respond to such actions;
- our cost of capital, which may depend in part upon our portfolio quality,
ratings, prospects and outlook;
- changes in governmental regulation, tax rates and similar matters;
- "year 2000" computer and data processing issues; and
- other risks detailed in our other filings with the SEC.
3
DESCRIPTION OF THE COMPANY
We are the largest bank holding company headquartered in Indiana. We
operate principally through our subsidiaries. Our main subsidiary is Civitas
Bank which, until April 21, 1999, was named Citizens Bank of MidAmerica. We
have 144 banking offices, 29 consumer finance offices, and 200 ATMs, where we
provide a wide range of commercial banking, retail banking, trust, insurance and
investment services to customers located principally in Indiana, Illinois,
Michigan, Kentucky and Tennessee.
At March 31, 1999, we had:
- assets of $7.2 billion. - loans of $3.9 billion.
- deposits of $4.9 billion. - shareholders' equity of $518 million.
Our principal executive offices are located at 20 N.W. Third Street,
Evansville, Indiana 47739; and our telephone number is (812) 456-3400.
We have grown significantly through over 30 acquisitions of banks and
non-banks since 1986. We consummated our largest acquisition to date on April
17, 1998, when we acquired Pinnacle Financial Services, Inc., a $2.1 billion
bank holding company headquartered in St. Joseph, Michigan. Pinnacle operated
14 offices in southwestern Michigan and 30 offices in northwestern Indiana.
We operate with a "super community bank" philosophy -- which means that we
decentralize day-to-day customer services, such as pricing and lending
decisions, and centralize data processing systems, product development and back
office support functions. We believe that size gives us a considerable
advantage over community banks because we can offer more diverse products and
provide greater access to resources, especially technology. We have operations
in six of the ten largest Indiana counties. Based upon June, 1998 FDIC deposit
data, 78% of our deposits come from markets where we rank first, second or third
in deposit market share.
Our principal goal is to have consistent growth of core earnings and, to
achieve this goal, we focus on revenue growth and expense management.
Our revenue growth is driven by (i) developing quality loans with small
businesses and consumers, (ii) selectively acquiring banks and non-bank
businesses, (iii) selling internally developed or third-party fee-based
products, and (iv) motivating associates with incentive compensation.
- We focus on loan growth in the small business and consumer markets. Our
management believes that its strong community-oriented relationships
provide a competitive advantage over super regional banks.
- We have pursued a strategy of actively acquiring banks and thrifts. As a
result, our assets have increased from $1.9 billion at December 31, 1992
to $7.2 billion at March 31, 1999. To complement our bank and thrift
acquisitions, we have completed non-banking acquisitions such as
Wedgewood Partners, Inc., a full service broker-dealer and asset
management firm, Citizens Insurance of Evansville, the largest
independent insurance agency in Evansville, and Small, Parker & Blossom,
a third party employee benefit plan administrator.
4
- In order to grow our fee based businesses, we focus on investment
products sales, insurance sales and employee benefit plan administration.
Products are developed both in-house and selected from third-party
providers.
- In 1997, all of our associates were granted stock options to reward their
contributions to the Company and align their interests with the interests
of our shareholders. Associates also are rewarded with incentive bonuses
for increasing earnings per share. In addition, an extensive retail
incentive program rewards associates for successful referrals of new
customers and cross-selling of our products.
Expense management is driven by (i) back office operating efficiencies,
(ii) utilizing outsourcing where appropriate, and (iii) realizing cost savings
from acquisitions.
- We have four regional check processing and deposit operation functions in
Indiana and Illinois. Otherwise, essentially all of our other back office
support groups are located in Evansville. This approach to back office
operations facilitates efficiencies and, at the same time, our banking
units remain focused on customer service, selling and credit quality.
- Outsourcing non-core activities has played a key role in expense control
by allowing experts to focus on our operational issues. We have entered
into a facilities management arrangement with an experienced third-party
provider of data processing services. In 1997, we entered into a revenue
sharing arrangement with a major credit card servicer to which we sold
our credit card portfolio.
- We have actively acquired banks, thrifts and non-bank businesses to
facilitate growth. We generally realize cost savings from acquisitions
when the companies we acquire are converted to our data processing, back
office, marketing, and product development systems. There can be no
assurance, however, that we will achieve cost savings in each of our
acquisitions because cost savings are subject to known and unknown risks,
uncertainties and other factors which may cause the actual results,
performance or achievements to differ materially from those that we
originally contemplated.
5
SELECTED FINANCIAL DATA
The following table presents our selected consolidated historical financial
data which is qualified in its entirety by the information incorporated by
reference into this Prospectus and which should be read in conjunction with our
consolidated financial statements contained in our Annual Report to Shareholders
and Annual Report on Form 10-K for the year ended December 31, 1998 and our
Quarterly Report on Form 10-Q for the quarter ended March 31, 1999. The data
presented below that relates to the five years ended December 31, 1998 are
derived from our audited consolidated financial statements, and the data
presented below for the three months ended March 31, 1998 and March 31, 1999 are
derived from our unaudited consolidated financial statements and in our opinion
include all adjustments necessary to present fairly the data for such periods.
The results for the three months ended March 31, 1999 are not necessarily
indicative of what our results will be for the full year.
Three Months Ended
March 31, Year Ended December 31,
----------------------- --------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- -----
(Dollar amounts in thousands except for per share data)
INCOME STATEMENT DATA:
Interest income $ 82,647 $ 87,648 $ 496,385 $ 499,751 $ 451,728 $ 387,880 $ 314,414
Interest expense 63,992 65,808 260,121 267,206 234,496 198,448 146,342
Net interest income 61,795 57,115 236,264 232,545 217,232 189,432 168,072
Provision for loan losses 1,531 3,316 10,638 24,886 13,283 8,349 7,538
Non-interest income 28,973 22,801 106,734 81,980 68,686 56,437 56,126
Non-interest expense 51,245 47,886 232,476 198,859 191,940 157,108 146,942
Net income 24,643 19,581 61,571 59,874 53,682 52,847 45,954
PER SHARE DATA:
Basic operating income(1) $ 0.70 $ 0.56 $ 2.59 $ 2.12 $ 1.73 $ 1.62 $ 1.41
Basic net income 0.70 0.56 1.74 1.71 1.54 1.62 1.41
Diluted operating income(1) 0.68 0.55 2.53 2.09 1.70 1.59 1.39
Diluted net income 0.68 0.55 1.73 1.69 1.52 1.59 1.39
Dividends declared(2) 0.24 0.22 0.90 0.82 0.74 0.50 0.65
Book value 14.75 14.90 14.85 14.66 14.10 13.75 12.35
BALANCE SHEET DATA AT PERIOD END:
Loans $3,882,985 $3,941,007 $3,891,269 $3,987,447 $3,690,944 $3,227,232 $3,081,314
Earning assets 6,740,599 6,101,283 6,624,439 6,143,971 5,928,180 5,170,754 4,472,544
Assets 7,218,796 6,579,990 7,141,797 6,596,136 6,351,785 5,576,314 4,806,175
Deposits 4,917,840 4,681,485 4,958,337 4,615,062 4,593,441 4,255,135 3,631,957
FHLB advances and long-term
debt 595,502 658,410 626,759 726,658 545,968 202,939 252,384
Shareholders' equity 517,629 524,635 527,046 515,463 495,673 475,789 401,630
FINANCIAL RATIOS:
Return on average assets(1) 1.39% 1.20% 1.37% 1.14% 1.03% 1.05% 1.02%
Return on average equity(1) 19.32 15.30 17.88 14.83 12.54 12.31 11.37
Net interest margin 3.92 3.85 4.02 3.94 4.04 4.11 4.09
Equity to assets 7.17 7.97 7.38 7.81 7.80 8.53 8.36
Tier 1 risk-based capital
ratio 14.58 11.77 14.76 11.49 11.92 11.93 11.87
Net charge-offs to average
loans 0.17 0.34 0.30 0.42 0.36 0.27 0.15
Allowance for loan losses to
loans 1.45 1.40 1.45 1.38 1.25 1.34 1.33
Non-performing loans to loans 0.95 0.75 0.90 0.70 0.91 1.00 0.65
Allowance for loan losses to
non-performing loans 153 187 161 197 137 134 205
Risk assets to loan-related
assets(3) 1.28 1.17 1.19 1.11 1.36 1.39 1.11
- ---------------------
<FN>
(1) Operating income and financial ratios are based on income that excludes SAIF assessment in 1996 and merger and related
charges in 1997 and 1998.
(2) We used to declare a dividend in one quarter and pay it in the next quarter. We changed this policy during 1995 and
began declaring and paying dividends in the same quarter. Our fourth quarter dividend for 1995 was declared and paid by us
in January 1996.
(3) Risk assets include non-performing loans, loans past due 90 days and still accruing interest and foreclosed properties.
Loan-related assets include loans and foreclosed properties.
6
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
Our common stock is traded on the NYSE under the symbol "BNK". The
following table sets forth the high and low sales prices and cash dividends
declared per share of our common stock for the periods indicated.
PRICE RANGE
----------------- DIVIDENDS
HIGH LOW DECLARED
---- --- ---------
YEAR ENDED DECEMBER 31, 1997
First quarter $37.53 $32.88 $.20
Second quarter 40.70 35.59 .20
Third quarter 41.02 36.52 .20
Fourth quarter 45.90 37.33 .22
YEAR ENDED DECEMBER 31, 1998
First quarter $47.03 $39.41 $.22
Second quarter 51.19 41.19 .22
Third quarter 50.23 40.00 .22
Fourth quarter 47.13 38.75 .24
YEAR ENDED DECEMBER 31, 1999
First quarter $46.56 $39.06 $.24
Second quarter (through ___________) _____ _____ .24
As of _______, 1999 there were approximately ______ holders of record of
our common stock. The last reported sales price of our common stock on the NYSE
on ________, 1999 was $________ per share.
7
RISK FACTORS
In addition to the other information contained in this Prospectus, you
should consider carefully the following risk factors before investing in our
common stock. We have also described the risks associated with an investment in
the Company in our reports with the SEC, which are incorporated into this
Prospectus by reference. We may also discuss other risks in supplements to this
Prospectus.
COMPETITION
The banking industry is highly competitive:
- numerous bank holding companies and groups of banks located in our
market area provide substantial competition in the acquisition and
operation of banks, savings associations and non-bank financial
institutions;
- our banking and finance subsidiaries and our non-banking
subsidiaries encounter substantial competition in all of their
banking and related activities and expect such competition to
intensify as the financial industry expands as more non-bank
competitors offer financial services; and
- recent changes in interstate banking laws have permitted some local
institutions to become part of larger regional and national
organizations.
Our banking and finance subsidiaries compete for loans and deposits with
(i) other commercial banks, (ii) savings associations and (iii) credit unions
and compete for deposits with money market funds. Our financial subsidiaries
also compete for various types of loans and financial services with (i) consumer
and commercial finance companies, (ii) mortgage banks, (iii) securities
brokerage companies, (iv) investment banking firms and (v) insurance companies.
Some of these entities and institutions are not subject to the same regulatory
restrictions that we are subject to as a bank holding company and therefore may
enjoy certain competitive advantages.
GROWTH THROUGH ACQUISITIONS
We have grown significantly since 1986 through over 30 acquisitions of
banks and non-banks. Our future growth is dependent in part upon our ability to
acquire businesses at favorable prices, terms and conditions, and to properly
manage and integrate their operations.
Our ability to expand successfully through acquisitions depends upon many
factors, including the successful identification and acquisition of financial
institutions and other related businesses and our management's ability to
effectively integrate the acquired businesses. Our future acquisitions may
involve the issuance of our common stock and that would dilute the ownership
interests of our existing shareholders.
Acquisitions involve the following risks to the Company:
- that our business judgment will prove inaccurate with respect to
- anticipated market growth;
8
- projected increases in revenue; and
- expected savings in operating expenses;
- that our management's attention will be diverted from day to day
operations;
- that the acquired business' operations may not be successfully
integrated into our operations; and
- that the acquired business' personnel may not be assimilated into
our culture.
There can be no assurance (i) that future acquisition opportunities, if
any, can be consummated on favorable terms, (ii) that we will be successful in
acquiring or integrating any businesses, or (iii) that any such acquisitions
will enhance our earnings.
REGULATION AND SUPERVISION
The banking industry is highly regulated. Federal and state agencies have
supervisory authority over the chartering, supervision and examination of banks,
savings banks and their bank holding companies. Numerous laws and regulations
exist which regulate how we and our subsidiaries conduct our businesses,
including regulations that:
- require us to maintain minimum capital levels;
- limit our payment of dividends;
- limit the type of acquisitions and mergers that we may undertake;
- limit the type of investments we can make;
- impose requirements on the reserves against deposits our banking
subsidiaries must maintain; and
- limit the loans our banking subsidiaries may make and the collateral
they may take.
The Federal Reserve Board has prescribed certain capital adequacy
guidelines for bank holding companies. If our capital falls below the minimum
levels established by these guidelines, we may be denied approval to acquire or
establish additional banks or non-bank businesses.
Because of concerns about the competitiveness and the safety and soundness
of the banking industry, Congress is considering a number of wide-ranging
proposals for altering the structure, regulation and competitive relationships
of the nation's financial institutions. Among such bills are proposals to:
- merge the Bank Insurance Fund and the Savings Association Insurance
Fund;
- eliminate the federal thrift charter;
- alter the statutory separation of commercial and investment banking;
9
- allow a wider variety of financial services companies to affiliate with
banks; and
- further expand the powers of banks, bank holding companies and
competitors of banks.
It cannot be predicted whether or in what form any of these proposals will
be adopted or the extent to which our business may be affected as a result.
GOVERNMENT POLICIES
The policies of federal and state regulatory agencies may have a
significant effect on our operating results and the operating results of the
banking industry as a whole. In order to influence general economic conditions,
an important function of the Federal Reserve Board is to regulate (i) aggregate
money supply, (ii) credit conditions and (iii) interest rates. The general
effect, if any, of the Federal Reserve Board's policies upon our future business
and earnings cannot be determined.
DEPENDENCE ON KEY PERSONNEL
We depend on the continued efforts of our executive officers and senior
management. The loss of executive officers or members of senior management
could have a material adverse effect on our operations, including our ability to
establish and maintain customer relationships. If we are unable to attract or
retain key employees, our business could be materially and adversely affected.
STOCK PRICE FLUCTUATION
From time to time, there may be significant fluctuations in the market
price of our common stock. Such fluctuations could be caused by the occurrence
of, or announcements or rumors related to, changes in (i) our operating results,
(ii) our competitors' operating results, (iii) changes in general economic or
other conditions in the United States, or (iv) foreign economies or financial
markets.
In addition, the stock market has recently experienced extreme price and
volume fluctuations that often have been unrelated or disproportionate to the
operating performance of affected companies. Such fluctuations may adversely
affect the market price of our common stock.
ACQUISITION TERMS
This Prospectus covers the offer and sale of up to 250,000 shares of our
common stock that we may issue from time to time in connection with future
direct or indirect acquisitions of other businesses, properties or securities in
business combination transactions. We will furnish this Prospectus to the
securityholders or owners of those businesses we acquire in exchange for the
shares of common stock we offer by this Prospectus.
We expect that negotiations with the securityholders or principal owners of
the businesses whose securities or assets we acquire will determine the terms
upon which we will issue the shares of common stock offered by this Prospectus.
We expect that the shares of common stock we issue in an acquisition will be
valued at prices reasonably related to the market prices for our common stock
prevailing at or near the time we enter into an acquisition agreement or
consummate the acquisition. We will pay all expenses of the offering of the
shares of common stock described in this Prospectus.
If we consummate an acquisition (or a series of acquisitions since the
date of our most recently audited financial statements) that would have a
material financial effect on the Company, we will file a
10
Current Report on Form 8-K containing the financial and other information about
the acquisition(s) that would be material to subsequent purchasers of the
shares of common stock we offer in this Prospectus.
SELLING SHAREHOLDERS
This Prospectus also may be used for reoffers and resales by persons who
receive our common stock in acquisition transactions and who may be entitled to
reoffer and resale our common stock under circumstances requiring the use of a
prospectus. No person will be authorized to use this Prospectus for an offer of
common stock unless we agree. We may consent to the use of this Prospectus by
such selling shareholders for a limited period of time and subject to
limitations and conditions, which may be varied by agreement between us and such
selling shareholders. A supplement to this Prospectus will set forth
information identifying any such selling shareholders and disclosing the
information about such selling shareholders and the securities to be sold as may
then be required by the Securities Act and the rules of the SEC.
RESTRICTIONS ON RESALE OF COMMON STOCK
The common stock offered by this Prospectus has been registered under the
Securities Act, but this registration does not cover resale or distribution of
such common stock by persons who receive our common stock in acquisition
transactions. Affiliates of those entities that we acquire may not sell the
shares of common stock offered by this Prospectus except pursuant to an
effective registration statement under the Securities Act covering such shares,
or in compliance with Rule 145 promulgated under the Securities Act or another
applicable exemption from the registration requirements of the Securities Act.
Rule 145 generally permits affiliates of acquired companies to sell their
shares of common stock immediately following the acquisition in compliance with
certain volume limitations and manner of sale requirements under Rule 145.
Specifically, sales by such affiliates during any three-month period cannot
exceed the greater of (i) 1% of all of the shares of our common stock
outstanding, and (ii) the average weekly reported volume of trading of our
common stock on the NYSE during the four calendar weeks preceding the proposed
sale. Sales by such affiliates also may be made only in a broker's transaction
or transactions directly with a market maker.
These restrictions will cease to apply under most other circumstances if
the affiliate has held the shares of common stock offered by this Prospectus for
at least one year, provided that the person or entity is not then an affiliate
of the Company. Individuals who are not affiliates of the company being
acquired will not be subject to resale restrictions under Rule 145 and may
resell the shares of common stock offered by this Prospectus immediately
following the acquisition without an effective registration statement under the
Securities Act.
In addition to the resale limitations imposed by federal securities laws
described above, we may require that persons who receive our common stock in
connection with an acquisition agree to hold such stock for a certain period
from the date it is received.
Additional restrictions may apply if the acquisition will be accounted for
under the pooling of interests method of accounting.
11
USE OF PROCEEDS
This Prospectus relates to shares of common stock that may be offered and
issued from time to time in connection with acquisitions by us of businesses.
Other than the businesses acquired, we will not receive any proceeds from the
offering of shares of our common stock by this Prospectus.
DESCRIPTION OF CAPITAL STOCK
The rights of the owners of businesses who acquire shares of common stock
offered by this Prospectus will be governed by Indiana corporate law and by our
Articles of Incorporation and Bylaws. Set forth below is a general description
of our capital stock, which is qualified in its entirety by reference to our
Articles of Incorporation and Bylaws.
GENERAL
Our authorized capital stock consists of 100,000,000 shares of common stock
and 2,000,000 shares of preferred stock. As of March 31, 1999, we had
35,482,969 shares of common stock outstanding and no shares of preferred stock
outstanding.
COMMON STOCK
DIVIDEND RIGHTS
Our shareholders are entitled to receive dividends when as and if declared
by our Board of Directors out of funds legally available therefor, subject to
any preferential dividend rights which may attach to preferred stock which we
may issue in the future. The timing and amount of future dividends will depend,
among other things, upon our earnings and financial condition and the earnings
and financial condition of our subsidiaries. In addition, the ability of our
subsidiary bank to pay cash dividends, which are expected to continue to be our
principal source of income, is restricted by applicable banking laws.
VOTING RIGHTS
Our shareholders are entitled to one vote per share in the election of
directors and in all other matters to be voted upon by the shareholders
generally. Our shareholders do not have cumulative voting rights in the
election of directors. Therefore, holders of a majority of the shares of our
outstanding common stock can elect the entire Board of Directors.
LIQUIDATION RIGHTS
In the event we are liquidated, dissolved or our affairs are wound up,
whether voluntarily or involuntarily, our shareholders would be entitled to
share ratably in any of our assets or funds that are available for distribution
to our shareholders after the satisfaction of our liabilities (or after adequate
provision is made therefor) and after preferences on any outstanding preferred
stock.
NO PREEMPTIVE RIGHTS
Our shareholders do not have the preemptive right to subscribe on a
pro-rata basis for any presently or subsequently authorized shares of our common
stock.
12
ASSESSMENT AND REDEMPTION
Our common stock is not subject to redemption or any sinking fund and the
outstanding shares of our common stock are fully paid and non-assessable.
TRANSFER AGENT
Civitas Bank, our banking subsidiary, is the transfer agent for our common
stock.
PREFERRED STOCK
Our Board of Directors is authorized to cause preferred stock to be issued
from time to time, in series, by resolution adopted prior to the issue of shares
of a particular series, and to fix and determine in the resolution the
designation, relative rights, preferences and limitations of the shares of each
series, including voting, dividend and liquidation rights and all other matters
with respect to such shares as are permitted to be fixed and determined by the
Board of Directors under the Indiana corporate law.
TRUST PREFERRED SECURITIES
CNB Capital Trust I, one of our subsidiaries, issued trust preferred
securities in June 1998. The trust preferred securities (i) have a liquidation
amount of $25 per share, (ii) have a cumulative annual distribution rate of
6.0%, or $0.375 per share, payable quarterly, and (iii) are convertible at any
time into our common stock at a conversion ratio of 0.4835 shares of common
stock for each trust preferred security (equivalent to a conversion price of
$51.71 per share), subject to certain adjustments. The sole assets of CNB
Capital Trust I are $177,835,000 of our convertible subordinated debentures with
the interest rate, maturity date and conversion rate substantially identical to
those of the trust preferred securities. Holders of trust preferred securities
do not have voting rights in the Company.
CERTAIN ANTI-TAKEOVER PROVISIONS
Our Articles of Incorporation include provisions which may have the effect
of making takeovers of the Company more difficult. Set forth below is a general
description of certain antitakeover provisions contained in our Articles of
Incorporation and Bylaws and under Indiana corporate law.
SHAREHOLDER VOTE REQUIRED FOR CERTAIN TRANSACTIONS
BUSINESS COMBINATIONS. Our Articles of Incorporation include a so-called
"fair price" provision. This provision generally provides that mergers, other
business combinations and similar transactions and the sale, lease, mortgage or
other disposition of more than 10% of our or our subsidiaries' total assets to
any person or entity beneficially owning directly or indirectly more than 10% of
our outstanding voting stock, or affiliates or associates of such an entity (a
Company 10% shareholder), may not be consummated without the approval of holders
of at least 80% of our voting stock, unless either: (i) the transaction is
approved by a majority of the members of our Board of Directors who are not
affiliated with the Company 10% shareholder, or (ii) the transaction meets
certain minimum (fair price) price requirements (in either of which cases, the
shareholder and director approval requirements of the "fair price" provision
would no longer apply and only the normal shareholder and director approval
requirements of the Indiana corporate law would govern the transaction).
13
The primary purpose of our "fair price" provision is to provide additional
safeguards for the remaining shareholders in the event that an individual or
entity becomes a major shareholder of the Company. If the Company comes under
the control of a single person or entity, substantial inequities could befall
the minority shareholders. A bid for control of a target company is often
followed, in time, by a complete business combination that eliminates minority
interests in the target company on terms often unfavorable to the minority -- a
so-called "two-tier" structured takeover. Minority shareholders in these
circumstances may be forced out by the controlling shareholder in a business
combination transaction at a time and for a price (cash or other types of
consideration, often including debt instruments) not to their liking. The price
per share in such transactions often is lower than the price per share
previously paid by the controlling shareholder for its controlling block of
stock in the first tier of the takeover. The minority shareholders, in such
event, may have no alternative to accepting such price unless they choose to
follow the statutory procedures for appraisal rights as a dissenting shareholder
or to bring legal action against the controlling shareholder for breach of
fiduciary duty, either of which procedures may be costly and time-consuming.
Our higher shareholder vote requirements make it more difficult for a
single shareholder to obtain ultimate "control" over the Company in the sense of
being able unilaterally to effect a completed business combination on the
controlling shareholder's own terms. A disadvantage of these higher shareholder
vote requirements, however, is that outside parties contemplating an attempt to
acquire control over the Company by acquiring less than all of its outstanding
stock may be discouraged from making such an attempt, because ultimate "control"
will require obtaining a higher percentage of the outstanding shares of common
stock than if normal shareholder vote requirements were in effect. As a result,
premium offers for our common stock from outside parties interested in acquiring
control may be somewhat less likely from such parties than premium offers for
other similar companies without such high voting requirements. In addition,
because outside parties may be somewhat less likely to attempt to acquire
control over the Company due to its higher shareholder vote requirements, our
management may be somewhat less vulnerable to removal in the future than would
be the case if such provisions were not in effect.
REMOVAL OF DIRECTORS. The Indiana corporate law provides that directors
may be removed in any manner provided in a company's articles of incorporation
and that the shareholders or directors may remove one or more directors with or
without cause unless the articles of incorporation provide otherwise. If a
director is elected by a voting group of shareholders, only the shareholders of
that voting group may participate in the vote to remove that director. A
director may be removed by the shareholders, if they are otherwise authorized to
do so, only at a meeting called for the purpose of removing the director, and
the meeting notice must state that the purpose, or one of the purposes, of the
meeting is removal of the director.
Our Articles of Incorporation provide that at a meeting called expressly
for that purpose, a director or the entire Board of Directors may be removed
without cause only upon the affirmative vote of the holders of not less than 80%
of the shares entitled to vote generally in an election of directors. At a
meeting called expressly for that purpose, a director may be removed by the
shareholders for cause by the affirmative vote of the holders of a majority of
the shares entitled to vote upon his election. The Articles of Incorporation
provide that, except as may be otherwise provided by law, cause for removal will
be construed to exist only if the director whose removal is proposed: (i) has
been convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal, or (ii) has been adjudged by a
court of competent jurisdiction to be liable for negligence or misconduct in the
performance of his duty to the Company in a manner of substantial importance to
the Company, and such adjudication is no longer subject to direct appeal.
14
Our shareholder vote requirement for removal of directors without cause
precludes a majority shareholder from circumventing the classified Board
structure by decreasing the size of the Board of Directors until its nominees
have a numerical majority or by removing directors not up for election, filling
the resulting vacancy with its nominees, and thereby gaining control of the
Board of Directors. The removal provisions would make it more difficult for
shareholders of the Company to change the composition of the Board of Directors
even if the shareholders believe that such a change would be desirable.
AMENDMENTS TO ARTICLES OF INCORPORATION. The Indiana corporate law
provides that, unless a greater vote is required under a specific provision of
the Indiana corporate law or by a corporation's articles of incorporation or its
board of directors, a corporation may amend its articles of incorporation upon
the affirmative vote of the holders of a greater number of shares cast in favor
of the amendment than the holders of shares cast against the amendment, unless
the amendment creates dissenters' rights in which case a favorable vote of the
holders of a majority of the outstanding shares is required. Under the Indiana
corporate law, a corporation's board of directors may condition its submission
of a proposed amendment to the shareholders of the corporation on any basis,
including the requirement of the affirmative vote of holders of a greater
percentage of the voting shares of the corporation than otherwise would be
required under the Indiana corporate law.
Our Articles of Incorporation provide that, notwithstanding any other
provision of the Articles of Incorporation or any provision of law or any
preferred stock designation, the provisions of Article VII (relating to the
classification, number, terms, removal of directors and newly created
directorships and vacancies), Article IX (relating to special meetings of
shareholders) and Article X (relating to the "fair price" provisions discussed
herein) may be altered, amended or repealed only with the affirmative vote of
the holders of at least 80% of our common stock then entitled to vote in an
election of directors.
VOTING RIGHTS. Our shareholders are entitled to one vote per share in the
election of directors and in all other matters to be voted upon by them
generally. Directors are elected by the majority vote of the shareholders, and
shareholders are not entitled to cumulative voting in the election of directors.
Therefore, holders of a majority of the shares of our common stock can elect the
entire Board of Directors.
The number of directors to constitute our Board of Directors may not be
more than twenty nor less than six. Our Board of Directors currently consists
of twelve members, and the directors are divided into three classes with the
term of office of one of such classes expiring in each year. At each annual
meeting of shareholders, the successors to the directors of the class whose term
is expiring at that time are elected to hold office for a term of three years.
SPECIAL MEETING OF SHAREHOLDERS; SHAREHOLDER ACTION BY WRITTEN CONSENT
Our Articles of Incorporation require that only shareholders who hold at
least 80% of our outstanding voting shares may call a special meeting of our
shareholders. This provision is intended to discourage attempts by the holders
of less than 80% of our outstanding voting stock from disrupting our business
between annual shareholders meetings by calling special meetings. The possible
disadvantages of this provision are that it makes it more difficult for a
shareholder or shareholder group to take action where such action is opposed by
a majority of the Board of Directors and management, and it may delay the
removal of directors, even if cause exists for such removal. The Indiana
corporate law provides that any action required or permitted to be taken at a
meeting of shareholders may be taken without a meeting if a consent, in writing,
setting forth the action taken is signed by the holders of all of the shares
entitled to vote on the subject matter.
15
TAKEOVER STATUTES
The Indiana corporate law prohibits, in general, any business combination,
such as a merger or consolidation, between an Indiana corporation with shares of
its stock registered under the federal securities laws or that makes an election
under the Indiana corporate law, and an "interested shareholder" (defined as any
owner of 10% or more of the corporation's stock) for five years after the date
on which such shareholder became an interested shareholder, unless the stock
acquisition which caused the person to become an interested shareholder was
approved in advance by the corporation's board of directors. This so-called
"five-year freeze" provision of the Indiana corporate law is effective even if
all parties should subsequently decide that they wish to engage in the business
combination.
The Indiana corporate law also contains a "control share acquisition"
provision which effectively denies voting rights to shares of an "issuing public
corporation" acquired in control share acquisitions unless the grant of such
voting right is approved by a majority vote of disinterested shareholders. An
issuing public corporation is a corporation that (i) has 100 or more
shareholders, (ii) has its principal place of business, its principal office or
substantial assets within Indiana, and (iii) either (a) more than 10% of its
shareholders are Indiana residents, (b) more than 10% of its shares are owned by
Indiana residents, or (c) 10,000 or more of its shareholders are residents of
Indiana. We are an "issuing public corporation." A control share acquisition
is one by which a purchasing shareholder acquires more than one-fifth,
one-third, or one-half of the voting power of the stock of an "issuing public
corporation." In addition, if any person proposing to make or who has made
"control share acquisitions" does not file an "acquiring person statement" with
the issuing corporation or if the control shares are not accorded full voting
rights by other shareholders, and if the articles of incorporation or bylaws of
the corporation whose shares are acquired authorize such redemption, the
acquired shares are subject to redemption by the corporation. Finally, if a
control share acquisition should be made of a majority of the corporation's
voting stock, and those shares are granted full voting rights, shareholders are
granted dissenters' rights.
OTHER MATTERS AFFECTING OUR SHAREHOLDERS
Set forth below are certain other provisions of the Indiana corporate law
that affect our shareholders.
DISSENTERS' RIGHTS
Under the Indiana corporate law, a shareholder of a corporation is entitled
(subject to certain exceptions) to receive payment for the fair value of his
shares if, among other things, such shareholder dissents from a plan of share
exchange, sale or exchange of all or substantially all of the property of the
corporation, or a merger or control share acquisition to which such corporation
is a party.
INDEMNIFICATION
Pursuant to the Indiana corporate law and our Articles of Incorporation and
Bylaws, we are obligated to indemnify certain officers and directors in
connection with liabilities arising from legal proceedings resulting from such
person's service to us in certain circumstances. We also may voluntarily
undertake to indemnify certain persons acting on our behalf in certain
circumstances.
The Indiana corporate law provides for mandatory indemnification of
directors and officers of Indiana corporations and permissive indemnification of
directors, officers, employees and agents of corporations who are made parties
to proceedings as a result of their relationship with such corporation. The
Indiana corporate law also applies to individuals who are serving at such
corporation's request as
16
directors, officers, employees and agents of such corporation's subsidiaries.
The Indiana corporate law requires corporations, unless limited by their
articles of incorporation, to indemnify any director or officer against
reasonable expenses incurred in connection with any proceeding to which
such person was a party if the individual is wholly successful on the
merits. The Indiana corporate law authorizes corporations to indemnify any
director, officer, employee or agent against liability incurred in such a
proceeding generally if the individual's conduct was in good faith and the
individual reasonably believed, in the case of conduct in the individual's
official capacity, that his conduct was in the corporation's best interests and
in all other cases that his conduct was not opposed to the best interests of
such corporation.
The Indiana corporate law further authorizes any court of competent
jurisdiction, unless the articles of incorporation provide otherwise, to order
indemnification generally if the court determines a director or officer of a
corporation is entitled to mandatory indemnification or is otherwise fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances. The Indiana corporate law also authorizes corporations to
advance reasonable expenses in advance of final disposition of a proceeding
generally if the individual affirms in writing a good faith belief that he
satisfies the standard of conduct for permissive indemnification, the individual
undertakes in a signed writing to repay the advance if it is determined he does
not satisfy the standard of conduct for permissive indemnification and the
corporation determines that the facts then known do not preclude
indemnification. Finally, the Indiana corporate law authorizes further
indemnification to the extent that the corporation may provide in its articles
of incorporation, bylaws, a resolution of the board of directors or the
shareholders or any other authorization, whenever adopted, after notice, by a
majority vote of holders of all the voting shares then issued and outstanding.
Except with respect to the advancement of expenses, our Bylaws generally provide
for the indemnification of our directors, officers, employees and agents to the
extent permitted by the Indiana corporate law.
LIMITATION OF LIABILITY OF DIRECTORS
The Indiana corporate law provides that no director of a corporation will
be subject to liability for any action taken as a director, or any failure to
take any action as a director, unless the director has both breached or failed
to perform the duties of the director's office in compliance with the Indiana
corporate law and the breach or failure to perform constitutes willful
misconduct or recklessness. This provision eliminates the potential liability
of a corporation's directors for failure, except through willful misconduct or
recklessness, to satisfy their duty of care, which requires each director to
carry out his duties in good faith, with the care an ordinarily prudent person
in a like position would exercise under similar circumstances, and in a manner
the director reasonably believes to be in the best interests of the corporation.
This provision may thus reduce the likelihood of derivative litigation against
directors and discourage or deter shareholders or management from bringing a
lawsuit against directors for breach of their duty of care, even though such an
action, if successful, might otherwise have been beneficial to the corporation
and its shareholders. Shareholders therefore will not have a cause of action
based upon negligent business decisions, including those relating to attempts to
acquire control of the corporation. This provision does not, however, preclude
all equitable remedies for breach of the duty of care, although such remedies
might not be available as a practical matter.
CONSIDERATION OF NON-SHAREHOLDER INTERESTS
The Indiana corporate law specifically authorizes directors, in considering
the best interests of a corporation, to consider the short-term and long-term
interests of the corporation as well as the effects of any action on
shareholders, employees, suppliers and customers of the corporation and
communities in which offices or other facilities of the corporation are located,
and any other factors the directors consider pertinent. Under the Indiana
corporate law, directors are not required to approve a proposed corporate
17
action if the directors determine in good faith after considering and weighing
as they deem appropriate the effect of such action on the corporation's
constituents that such approval is not in the best interest of the corporation.
In addition, the Indiana corporate law states that directors are not required to
redeem any rights under or render inapplicable a shareholder rights plan or to
take or decline to take any other action solely because of the effect such
action might have on a proposed acquisition of control of a corporation or the
amounts to be paid to shareholders under such an acquisition. The Indiana
corporate law explicitly provides that the different or higher degree of
scrutiny imposed under the Delaware General Corporation Law with respect to
Delaware corporations and certain other jurisdictions upon director actions
taken in response to potential changes in control will not apply. Any
determination made with respect to the foregoing by a majority of the
disinterested directors will conclusively be presumed to be valid unless it can
be demonstrated that such determination was not made in good faith.
LEGAL OPINION
The legality of the common stock offered by this Prospectus will be passed
upon by Lewis, Rice & Fingersh, L.C., St. Louis, Missouri.
EXPERTS
The consolidated financial statements of CNB Bancshares, Inc. and
subsidiaries, as of December 31, 1998 and 1997, and for each of the years in the
three year period ended December 31, 1998, are incorporated by reference herein
in reliance upon the report of KPMG LLP, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing.
---------------
18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company shall indemnify any director
or officer of the Company 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 Company, or serving
or having served at the request of the Company 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 Company but are employees of the Company or are officers, directors or
employees of any subsidiary of the Company, and (ii) approve indemnifica-tion of
directors, officers, or other persons to the full extent permitted by the
Indiana corporate law in effect at such time.
Section 23-1-37-9 of the Indiana corporate 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 corporate 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 corporate 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 corporate law, and that those making the decision to reimburse the
director determine that the facts then known would not preclude indemnification
under the Indiana corporate law.
The Company's Bylaws further provide, in accordance with the Indiana
corporate law, that the Company shall have the power to purchase and maintain
insurance onbehalf of any person who is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company 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 Company would have power to indemnify him against such
liability under the Bylaws or the Indiana corporate law. Pursuant to a policy
of directors' and officers' liability insurance with a total three year
aggregate limit of $15,000,000, the Company'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 Company.
II-1
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following exhibits are filed as part of this Registration
Statement or incorporated by reference herein:
(3)(a) Restated Articles of Incorporation of CNB Bancshares,
Inc., incorporated herein by reference as Exhibit 3(a) to
CNB Bancshares, Inc.'s Registration Statement on
Forms S-8 POS dated May 18, 1998;
(3)(b) Amended Bylaws of CNB Bancshares, Inc., incorporated
herein by reference as 3(ii) to CNB Bancshares,
Inc.'s 1995 Annual Report on Form 10-K;
(4) No long-term debt instrument issued by CNB Bancshares,
Inc. exceeds 10% of the consolidated total assets of CNB
Bancshares, Inc. and its subsidiaries. In accordance
with paragraph 4(iii) of Item 601(b) of Regulation S-K,
CNB Bancshares, Inc. will furnish to the Securities and
Exchange Commission upon request copies of long-term
debt instruments and related agreements.
(5) Opinion of Lewis, Rice & Fingersh, L.C. (re legality);
(23)(a) Consent of Lewis, Rice & Fingersh, L.C. (in opinion
re legality);
(23)(b) Consent of KPMG LLP;
(24) Powers of Attorney.
(b) No financial statement schedules are required to be filed herewith
pursuant to Item 21(b) or (c) of this Form.
ITEM 22. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value
of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
II-2
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration or any
material change to such information 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.
(4)(i) The undersigned Registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder through
the use of a prospectus which is a part of this registration statement, by any
person or party who is deemed to be an underwriter within the meaning of Rule
145(c), the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
(ii) The undersigned Registrant undertakes that every prospectus (i)
that is filed pursuant to paragraph (4)(i) immediately preceding, or (ii) that
purports to meet the requirements of Section 10(a)(3) of the Securities Act of
1933, as amended, and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, 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.
(5) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated document by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
(6) The undersigned Registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective, except where
the transaction in which the securities being offered pursuant to the
registration statement would itself qualify for an exemption under Section 5 of
the Securities Act of 1933, as amended, absent the existence of other similar
(prior or subsequent) transactions.
(7) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended (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, as amended) 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.
II-3
(8) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 expressed
in the Securities Act of 1933, as amended, 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.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Evansville, State of
Indiana, on May 18, 1999.
CNB BANCSHARES, INC.
By /s/ James J. Giancola
-----------------------------------
James J. Giancola
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on May 18, 1999, by the following persons
in the capacities indicated.
Name Title/Position
- ---- --------------
* Chairman of the Board
- --------------------------------
H. Lee Cooper III
/s/ James J. Giancola President, Chief Executive Officer and
- -------------------------------- Director
James J. Giancola (principal executive officer)
/s/ John R. Spruill Executive Vice President
- -------------------------------- (principal financial officer)
John R. Spruill
/s/ Ralph L. Alley Senior Vice President and Controller
- -------------------------------- (principal accounting officer)
Ralph L. Alley
* Director
- --------------------------------
John D. Engelbrecht
* Director
- --------------------------------
Terrence A. Friedman
* Director
- --------------------------------
James E. Hutton
* Director
- --------------------------------
Robert L. Koch, II
II-5
* Director
- --------------------------------
Larry J. Kremer
* Director
- --------------------------------
Edmund L. Hafer
* Director
- --------------------------------
Burkley F. McCarthy
* Director
- --------------------------------
Robert K. Ruxer
* Director
- --------------------------------
Thomas W. Traylor
* Director
- --------------------------------
Alton C. Wendzel
* By /s/ James J. Giancola
------------------------
Attorneys-in-fact
II-6
INDEX TO EXHIBITS
Number Exhibit
------ -------
(3)(a) Restated Articles of Incorporation of CNB Bancshares,
Inc., incorporated herein by reference as Exhibit 3(a) to
CNB Bancshares, Inc.'s Registration Statement on Forms S-8
POS dated May 18, 1998;
(3)(b) Amended Bylaws of CNB Bancshares, Inc., incorporated
herein by reference as Exhibit 3(ii) to CNB Bancshares, Inc.'s
1995 Annual Report on Form 10-K;
(4) No long-term debt instrument issued by CNB Bancshares, Inc.
exceeds 10% of the consolidated total assets of CNB
Bancshares, Inc. and its subsidiaries. In accordance with
paragraph 4(iii) of Item 601(b) of Regulation S-K, CNB
Bancshares, Inc. will furnish to the Securities and Exchange
Commission upon request copies of long-term debt
instruments and related agreements;
(5) Opinion of Lewis, Rice & Fingersh, L.C. (re legality);
(23)(a) Consent of Lewis, Rice & Fingersh, L.C. (in opinion re
legality);
(23)(b) Consent of KPMG LLP;
(24) Powers of Attorney.