As filed with the Securities and Exchange Commission on August __, 2006
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
EXCHANGE NATIONAL BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
MISSOURI 43-1626350
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
132 EAST HIGH STREET, JEFFERSON CITY, MISSOURI 65101
(Address of principal executive offices) (Zip Code)
THE EXCHANGE NATIONAL BANCSHARES PROFIT SHARING 401(K) PLAN
(Full title of the plan)
----------
MS. KATHLEEN L. BRUEGENHEMKE
EXCHANGE NATIONAL BANCSHARES, INC.
132 EAST HIGH STREET
JEFFERSON CITY, MISSOURI 65101
(Name and address of agent for service)
(573) 761-6179
(Telephone number, including area code, of agent for service)
----------
Please send copies of all correspondence to:
Stinson Morrison Hecker LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106
Attention: James W. Allen
(816) 842-8600
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------
Common Stock, par value $1.00 per share 33,000(2) $30.10 $993,300 $106.29
- -------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating registration fee, based on
$30.10, the average of the high and low market prices per share of the
stock as reported by the Nasdaq National Stock Market on August 8, 2006,
pursuant to Rule 457(h) under the Securities Act of 1933.
(2) The provisions of Rule 416 shall apply to this registration statement and
the number of shares registered on this registration statement
automatically shall increase or decrease as a result of stock splits, stock
dividends, or similar transactions.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
----------
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as amended,
which may be referred to as the Securities Act, and the instructional note to
Part I of Form S-8, the information specified in Part I of Form S-8 has been
omitted from the filing of this registration statement with the Securities and
Exchange Commission, or the SEC.
The documents containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act. Such documents and the documents incorporated by
reference herein pursuant to Item 3 of Part II hereof, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows Exchange National Bancshares, Inc., which may be referred to
as the registrant, and The Exchange National Bancshares Profit Sharing 401(k)
Plan, which may be referred to as the Profit Sharing Plan, to "incorporate by
reference" the information that they file with the SEC, which means:
- incorporated documents are considered part of this registration
statement;
- the registrant and the Profit Sharing Plan can disclose important
information by referring the reader to these documents, which may be
documents that the registrant or the Profit Sharing Plan previously
has filed with the SEC or that will be filed with the SEC in the
future; and
- information that the registrant or the Profit Sharing Plan file with
the SEC will automatically update and supersede this registration
statement and any previously incorporated information.
The registrant and the Profit Sharing Plan incorporate by reference the
documents or portions of documents listed below which were filed with the SEC
under the Securities Exchange Act of 1934, as amended, which may be referred to
as the Exchange Act:
- The registrant's annual report on Form 10-K for the year ended
December 31, 2005;
- The registrant's quarterly reports on Form 10-Q for the quarters ended
March 31, 2006 and June 30, 2006, respectively;
- The registrant's current reports on Form 8-K filed with the SEC on May
18, 2006, June 6, 2006, June 15, 2006 and July 31, 2006, respectively;
and
- the description of the registrant's common stock contained in the
registration statement on Form 8-A (File No. 0-23636) filed by the
registrant under the Exchange Act, as amended to date, including any
amendment or report filed for the purpose of updating such
description.
The registrant and the Profit Sharing Plan also incorporate by reference
filings with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, that are filed with the SEC after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold. Any statement contained in the documents 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 such
II-1
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 following summary is qualified in its entirety by reference to the
complete text of the statute referred to below and the Articles of Incorporation
and Bylaws of the registrant.
Section 351.355 of The General and Business Corporation Law of Missouri
provides for indemnification by a corporation of its officers and directors and
certain other persons as follows:
1. A corporation created under the laws of this state may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative, other than an action by
or in the right of the corporation, by reason of the fact that he 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, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted in good faith
and in a manner 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, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which 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, had reasonable cause to believe that
his conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any 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 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 against
expenses, including attorneys' fees, and amounts paid in settlement
actually and reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to
the corporation unless and only to the extent that the court in which the
action or suit was brought determines upon application that, despite the
adjudication of liability and in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
3. To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections 1 and 2 of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses, including attorney's fees, actually and
reasonably incurred by him in connection with the action, suit, or
proceeding.
4. Any indemnification under subsections 1 and 2 of this section,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that
II-2
indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in this section. The determination shall be made by the board of
directors by a majority vote of a quorum consisting of directors who were
not parties to the action, suit, or proceeding, or if such a quorum is not
obtainable, or even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or by the
shareholders.
5. Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final
disposition of the action, suit, or proceeding as authorized by the board
of directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this section.
6. The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement,
vote of shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity
authorized or contemplated under other subsections of this section,
including subsection 6, to any person who is or was a director, officer,
employee or agent, or to any person who 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,
provided such further indemnity is either (i) authorized, directed, or
provided for in the articles of incorporation of the corporation or any
duly adopted amendment thereof or (ii) is authorized, directed, or provided
for in any bylaw or agreement of the corporation which has been adopted by
a vote of the shareholders of the corporation, and provided further that no
such indemnity shall indemnify any person from or on account of such
person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct. Nothing in this
subsection shall be deemed to limit the power of the corporation under
subsection 6 of this section to enact bylaws or to enter into agreements
without shareholder adoption of the same.
8. The corporation may 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 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 corporation would have the power to
indemnify him against such liability under the provisions of this section.
9. Any provision of this chapter to the contrary notwithstanding the
provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies,
insurance companies, building and loan associations, savings bank and safe
deposit companies, mortgage loan companies, corporations formed for
benevolent, religious, scientific or educational purposes and nonprofit
corporations.
10. For the purpose of this section, references to "the corporation"
include all constituent corporations absorbed in a consolidation or merger
as well as the resulting or surviving corporation so that any person who is
or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he would if he had
served the resulting or surviving corporation in the same capacity.
11. For purposes of this section, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
the term "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such
II-3
director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
Article Tenth of the registrant's Articles of Incorporation contains a
provision requiring the registrant to indemnify its directors and officers to
the fullest extent permitted by Missouri law. In the event that the laws of the
state of Missouri are amended or changed, then the registrant automatically
shall be deemed authorized to indemnify such persons to the fullest extent
permitted by such law, as so changed. Article V of the registrant's Bylaws
provides that the registrant shall indemnify eligible persons in accordance with
Article Tenth of the registrant's Articles of Incorporation.
Without limiting the generality of the foregoing, Article Tenth of the
registrant's Articles of Incorporation requires the registrant to indemnify any
person against all liabilities and expenses actually and reasonably incurred by
such person in connection with any action, suit or proceeding by reason of the
fact that such person is or was serving as a director or officer of the
registrant or, at the registrant's request, as a director or officer of another
enterprise; provided that such person's conduct is not finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful misconduct; and
provided, further, that the registrant shall not be required to indemnify or
advance expenses to any such person in connection with an action, suit or
proceeding initiated by such person unless the initiation of such action, suit
or proceeding was authorized in advance by the registrant's Board of Directors.
Notwithstanding the foregoing, no indemnification shall be made in respect of
expenses, penalties or other payments incurred by such person in connection with
any administrative proceeding or action instituted by an appropriate bank
regulatory agency which results in a final order assessing civil money penalties
or requiring affirmative action by such person in the form of payments to the
registrant.
Article Tenth of the registrant's Articles of Incorporation permits the
Board of Directors to authorize the registrant to purchase and maintain
insurance against any liability asserted against any person against any
liability incurred by such person by reason of the fact that such person is or
was serving as a director or officer of the registrant or, at the registrant's
request, as a director or officer of another enterprise, whether or not the
registrant would have the power or obligation to indemnify such person under the
provisions described above, other than liability arising from any administrative
proceeding or action instituted by an appropriate bank regulatory agency which
results in civil money penalties against such person or the registrant. The
registrant has obtained directors and officers liability insurance which
(subject to certain limits and deductibles) (i) insures officers and directors
of the registrant and its subsidiaries against loss arising from certain claims
made against them by reason of their being directors or officers, and (ii)
insures the registrant against loss which it may be required or permitted to pay
as indemnification due its directors or officers for certain claims. Such
insurance provides coverage for certain matters as to which the registrant may
not be permitted by law to provide indemnification.
The indemnification authorized and provided for by the registrant's
Articles of Incorporation and Bylaws is not exclusive of any other rights to
which those seeking indemnification may be entitled under any statute,
agreement, vote of shareholders or disinterested directors, policy of insurance
or otherwise.
For information regarding the registrant's undertaking to submit to
adjudication the issue of indemnification for violation of the securities laws,
see "Undertakings," Item 9 hereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The registrant has submitted, or hereby undertakes to submit, the Profit
Sharing Plan and all amendment thereto to the Internal Revenue Service in a
timely manner, and has made or will cause to be made all changes required by the
Internal Revenue Service in order to qualify that plan.
The following Exhibits are filed as a part of this registration statement:
II-4
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Articles of Incorporation (filed as Exhibit 4.1 to the registrant's
current report on Form 8-K filed May 25, 2000 and incorporated herein
by reference).
4.1.1 Articles of Amendment to Articles of Incorporation (filed as Exhibit
4.1.1 to the registrant's current report on Form 8-K filed May 25,
2000 and incorporated herein by reference).
4.2 Bylaws, as amended (filed as Exhibit 3.2 to the registrant's annual
report on Form 10-K for the year ended December 31, 2000 and
incorporated herein by reference).
4.3 Specimen certificate representing shares of the registrant's $1.00 par
value common stock (filed as Exhibit 4 to the registrant's annual
report on Form 10-K for the year ended December 31, 1999 and
incorporated herein by reference).
4.4 Defined Contribution Plan and Trust Basic Plan Document #02*
4.5 401(k) Plan Adoption Agreement*
23.1 Consent of KPMG LLP.*
* Indicates document filed herewith.
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 this registration statement (or the most
recent post-effective amendment thereto) 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
(A) Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the registrant pursuant to section 13
or section 15(d)
II-5
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement; and
(B) Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934, and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant, 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.
II-6
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 Jefferson City, State of Missouri, on August 9, 2006.
EXCHANGE NATIONAL BANCSHARES, INC.
(Registrant)
By: /s/ James E. Smith
------------------------------------
James E. Smith
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signatures Title Date
---------- ----- ----
/s/ James E. Smith Chief Executive Officer and Chairman of August 9, 2006
- ------------------------------------- the Board of Directors (Principal
James E. Smith Executive Officer)
/s/ Richard G. Rose Treasurer (Principal Financial Officer August 9, 2006
- ------------------------------------- and Principal Accounting Officer)
Richard G. Rose
/s/ David T. Turner
- ------------------------------------- Director August 9, 2006
David T. Turner
/s/ James R. Loyd Director August 9, 2006
- -------------------------------------
James R. Loyd
/s/ Charles G. Dudenhoeffer, Jr. Director August 9, 2006
- -------------------------------------
Charles G. Dudenhoeffer, Jr.
/s/ David R. Goller Director August 9, 2006
- -------------------------------------
David R. Goller
/s/ Philip D. Freeman Director August 9, 2006
- -------------------------------------
Philip D. Freeman
/s/ Kevin L. Riley Director August 9, 2006
- -------------------------------------
Kevin L. Riley
/s/ Gus S. Wetzel, II Director August 9, 2006
- -------------------------------------
Gus S. Wetzel, II
II-7
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jefferson City, State of Missouri, on
August 9, 2006.
THE EXCHANGE NATIONAL BANCSHARES, INC.
PROFIT SHARING 401(K) PLAN
(Plan)
By: EXCHANGE NATIONAL BANCSHARES, INC.
By: /s/ James E. Smith
-----------------------------------
James E. Smith
Chairman of the Board and
Chief Executive Officer
II-8
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.4 Defined Contribution Plan and Trust Basic Plan Document #02
4.5 401(k) Plan Adoption Agreement
23.1 Consent of KPMG LLP
II-9