Securities Act Registration No.__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CNB CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 38-2662386
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
303 North Main Street
Cheboygan, Michigan 49721
(Address of principal executive offices) (Zip Code)
CNB CORPORATION 2004 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
James C. Conboy, Jr.
President and Chief Operating Officer
303 North Main Street
Cheboygan, Michigan 49721
(Name and address of agent for service)
(231) 627-7111
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of securities maximum maximum Amount of
to Amount to be offering price per aggregate offering registration
be registered registered (1) share (2) price (2) fee
- -------------------------------------------------------------------------------------------------
Common Stock
$2.50 par value 9886 shares $52 $514,072 $66
- -------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement shall also be deemed to cover any additional securities
to be offered or issued in connection with the provisions of the
above-referenced plan which provide for adjustments in the amount of securities
to be offered or issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the per
share and aggregate offering price are based upon the last sale price known to
the Corporation as of April 2, 2004.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
This registration statement relates to the CNB Corporation 2004
Employee Stock Purchase Plan. CNB Corporation (the "Registrant" or the
"Corporation") shall cause to be delivered to each participant material
information relating to the plan and its operations that will enable
participants to make an informed decision regarding investment in the plan. The
documents containing such information are not being filed with the Securities
and Exchange Commission (the "Commission") as a part of this registration
statement pursuant to Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant shall provide a written statement to participants
advising them of the availability of the documents incorporated by reference in
Item 3 of Part II of this registration statement and stating that such documents
are incorporated by reference into the Section 10(a) prospectus. The statement
shall indicate the availability without charge, upon written or oral request, of
other documents required to be delivered to employees pursuant to Rule 428(b)
and the address (giving the title or department) and telephone number to which
the request should be directed. The documents containing such information are
not being filed with the Commission as part of this registration statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Registrant with the
Commission and are incorporated in this registration statement by reference:
1. Annual Report of the Registrant on Form 10-K for the year
ended December 31, 2003;
2. All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
December 31, 2003; and
3. The description of the Registrant's common stock, $2.50 par
value per share, incorporated by reference to the information contained in Part
I, Item 8 of the Corporation's Amendment No. 1 to Form 10-SB filed with the
Commission on August 13, 1996, Commission file no. 0-28388, including any
amendment or report filed for the purpose of updating such description.
All documents filed with the Commission by the Registrant pursuant to
sections 13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the date
of this registration statement and prior to the filing of a post-effective
amendment hereto which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents. Any statement contained in a
document all or a portion of which is 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 which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Michigan Business Corporation Act ("MBCA") of the State of Michigan
provides that a Michigan corporation, such as the Corporation, may indemnify a
director or officer against his or her expenses and judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with any
action, suit or proceeding (other than an action by or in the right of the
corporation) involving such person by reason of the fact that such person is or
was a director or officer, concerning actions taken in good faith and in a
manner reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, without
reasonable cause to believe his or her conduct was unlawful. The MBCA also
provides that in a derivative action, a Michigan corporation may indemnify its
directors and officers against expenses actually and reasonably incurred to the
extent that such director or officer acted in good faith and in a manner such
director or officer reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made with
respect to any claim, issue or matter as to which such director or officer is
adjudged to be liable to the corporation unless and only to the extent that the
court determines upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such director or officer is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper. The MBCA also generally permits the advancement of a director's or
officer's expenses, including by means of a mandatory charter or bylaw provision
to that effect, in lieu of requiring the authorization of such advancement by
the Board of Directors in specific cases. Article VI of the Corporation's
articles of incorporation reads as follows:
"1. A director is not personally liable to the Corporation or its
shareholders for monetary damages for a breach of the director's fiduciary duty.
However, this provision does not eliminate or limit the liability of a director
for any of the following:
(a) A breach of the director's duty of loyalty to the corporation or
its shareholders.
(b) Acts or omissions not in good faith or that involve intentional
misconduct or knowing violation of law.
(c) A transaction from which the director derived an improper personal
benefit.
(d) An act or omission occurring before March 1, 1987 to the extent
such act or omission was a violation of law prior to that date.
(e) Declaration of a dividend or distribution of assets of the
Corporation, purchase of shares of the Corporation, or making a loan to an
officer, director, or employee of the Corporation in violation of an applicable
statute or the Corporation's articles or bylaws, unless the director acted in
good faith and with that degree of diligence, care and skill which an ordinarily
prudent person would exercise under similar circumstances in a like position;
provided, that in discharging his or her duties, a director, when acting in good
faith, may rely on the opinion of counsel of the Corporation, upon the report of
an independent appraiser selected with reasonable care by the board, or upon
financial statements of the Corporation represented to him or her as correct by
the president or officer of the Corporation having charge of the books of
account or stated in a written report by an independent public or certified
public accountant or firm of such accountants fairly to reflect the financial
condition of the Corporation.
"2. The Corporation has the power to indemnify a person who was or is a
party or is threatened to be made a party to a threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal, other than an action by or in the
right of the Corporation, by reason of the fact that he or she is or was a
director, officer, employee, or agent of the Corporation, or is or was serving
at the request of the Corporation as director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines, and amounts
paid in settlement actually and reasonably incurred by him or her in connection
with the action, suit, or proceeding, if the person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation or its shareholders, and with respect to a criminal
action or proceeding, if the person had no reasonable cause to believe his or
her conduct was unlawful. The termination of an action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be
in or not opposed to the best interests of the Corporation or its shareholders,
and, with respect to a criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
"3. The Corporation has the power to indemnify a person who was or is a
party to or is threatened to be made a party to a threatened, pending, or
completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, officer, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, or other enterprise,
whether for profit or not, against expenses, including actual and reasonable
attorneys' fees, and amounts paid in settlement incurred by the person in
connection with the action or suit, if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation or its shareholders. However, indemnification shall
not be made for a claim, issue, or matter in which the person has been found
liable to the Corporation unless and only to the extent that the court in which
the action was brought has determined upon application that despite the
adjudication of liability but in view of all circumstances of the case, the
person is fairly and reasonably entitled to indemnification for the expenses
which the court considers proper.
"4. (a) To the extent that a director, officer, employee, or agent of
the Corporation has been successful on the merits or otherwise in defense of an
action, suit, or proceeding referred in section 2 or 3 above, or in defense of a
claim, issue, or matter in the action, suit, or matter in the action, suit, or
proceeding, he or she shall be indemnified against expenses, including actual
and reasonable attorneys' fees, incurred by him or her in connection with the
action, suit, or proceeding and an action, suit, or proceeding brought to
enforce the mandatory indemnification provided in this subsection.
(b) An indemnification under section 2 or 3, unless ordered by a court,
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee, or agent
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in section 2 or 3. This determination shall be made in any
of the following ways:
(i) By a majority vote of a quorum of the board consisting of directors
who were not parties to the action, suit, or proceeding.
(ii) If the quorum described in subdivision (i) is not obtainable, then
by a majority vote of a committee of directors who are not parties to the
action. The committee shall consist of not less than 2 disinterested directors.
(iii) By independent legal counsel in a written opinion.
(iv) By the shareholders.
(c) If a person is entitled to indemnification under section 2 or 3 for
a portion of expenses including attorneys' fees, judgments, penalties, fines,
and amounts paid in settlement, but not for the total amount thereof, the
Corporation may indemnify the person for the portion of the expenses, judgments,
penalties, fines, or amounts paid in settlement for which the person is entitled
to be indemnified.
"5. Expenses incurred in defending a civil or criminal action, suit, or
proceeding described in section 2 or 3 may be paid by the Corporation in advance
of the final disposition of the action, suit, or proceeding upon receipt of an
undertaking by or on behalf of the director,
officer, employee, or agent to repay the expenses if it is ultimately determined
that the person is not entitled to be indemnified by the Corporation. The
undertaking shall be by unlimited general obligation of the person on whose
behalf advances are made but need not be secured.
"6. (a) The indemnification or advancement of expenses provided under
sections 2 to 5 is not exclusive of other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation, bylaws, or a contractual agreement. However, the total amount of
expenses advanced or indemnified from all sources combined shall not exceed the
amount of actual expenses incurred by the person seeking indemnification or
advancement of expenses.
(b) The indemnification provided in sections 2 to 5 continues as to a
person who ceases to be a director, officer, employee, or agent and shall inure
to the benefit of the heirs, executors, and administrators of the person.
"7. The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not, against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article.
"8. For purposes of sections 2 to 7 `corporation' includes all
constituent corporations absorbed in a consolidation or merger and the resulting
or surviving corporation, so that a person who is or was a director, officer,
employee, or agent of the constituent corporation as a director, officer,
partner, trustee, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust, or other enterprise whether for profit or not
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as the person would if he or
she had served the resulting or surviving corporation in the same capacity."
Insurance is maintained on a regular basis (and not specifically in
connection with this offering) against liabilities arising on the part of
directors and officers out of their performance in such capacities or arising on
the part of the Corporation out of its foregoing indemnification provisions,
subject to certain exclusions and to the policy limits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT INDEX
The following documents are attached hereto or incorporated herein by reference
as exhibits to this registration statement:
Item 601 Regulation S-K
Exhibit Reference
Number Description of Document
23 Consent of Crowe Chizek and Company LLC, independent auditors.
24 Powers of Attorney
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. 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% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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) shall not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the 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
of 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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, 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 provisions described in Item 6 above,
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.
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 Cheboygan, State of Michigan, on March 25, 2004.
CNB CORPORATION
By: /s/ Robert E. Churchill
-----------------------------------
Robert E. Churchill
Chairman 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 indicated
as of March 25, 2004.
Principal Executive Officer:
/s/ Robert E. Churchill
- --------------------------------------
Robert E. Churchill
Chairman, Chief Executive Officer and Director
Principal Financial Officer and Controller:
/s/ Irene M. English
- --------------------------------------
Irene M. English
Treasurer
/s/ James C. Conboy
- --------------------------------------
James C. Conboy
President, Chief Operating Officer and Director
/s/ John P. Ward
- --------------------------------------
John P. Ward
Secretary and Director
/s/ Steven J. Baker
- --------------------------------------
Steven J. Baker, Director
/s/ KathleenM. Darrow
- --------------------------------------
Kathleen M. Darrow, Director
/s/ Thomas J. Ellenberger
- --------------------------------------
Thomas J. Ellenberger, Director
/s/ Vincent J. Hillesheim
- --------------------------------------
Vincent J. Hillesheim, Director
/s/ John L. Ormsbee
- --------------------------------------
John L. Ormsbee, Director
/s/ Francis J. VanAntwerp
- --------------------------------------
Francis J. VanAntwerp, Jr., Director
EXHIBIT INDEX
23 Consent of Crowe Chizek and Company LLC, independent auditors.
24 Powers of Attorney