1
As filed with the Securities and Exchange Commission on August 24, 2001
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)
EXCHANGE NATIONAL BANCSHARES, INC. INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
-----------------------
MR. DONALD L. CAMPBELL
EXCHANGE NATIONAL BANCSHARES, INC.
132 EAST HIGH STREET
JEFFERSON CITY, MISSOURI 65101
(Name and address of agent for service)
(573) 761-6100
(Telephone number, including area code, of agent for service)
-----------------------
Please send copies of all correspondence to:
STINSON, MAG & FIZZELL, P.C.
1201 Walnut Street, Suite 2800
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 PER AGGREGATE OFFERING PRICE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE (1) (1) FEE
--------------------------------------------- -------------- ------------------------- -------------------------- ---------------
Exchange National Bancshares, Inc. Common 300,000 (2) $25.50 $7,650,000 $1,913
Stock (par value $1.00 per share)
----------
(1) Estimated solely for purposes of calculating registration fee,
based on $25.50, the average of the high and low market prices per
share of the stock as reported by the Nasdaq National Stock Market
on August 23, 2001, 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.
-----------------------
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates into this registration statement by
reference the documents or portions of documents listed below which were filed
with the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"):
o The registrant's annual report on Form 10-K for the year ended
December 31, 2000;
o The registrant's quarterly report on Form 10-Q for the quarter
ended March 31, 2001;
o The registrant's quarterly report on Form 10-Q for the quarter
ended June 30, 2001; and
o The registrant's current report on Form 8-K filed August 24,
2001; and
o The description of the common stock of the registrant contained
in the registrant's registration statement on Form 8-A
(No. 0-23636) (filed March 15, 1994).
The registrant also incorporates into this registration statement by
reference each of the following documents or portions of documents that are
filed with the SEC after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities offered hereby remaining unsold:
o All reports filed under Sections 13(a) and 13(c) of the Exchange
Act;
o All definitive proxy or information statements filed under
Section 14 of the Exchange Act; and
o All reports filed under Section 15(d) of the Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the common stock of the registrant
registered pursuant to this registration statement has been passed upon by
Stinson, Mag & Fizzell, P.C., 1201 Walnut Street, Kansas City, Missouri 64106.
As of August 20, 2001, attorneys of such law firm owned in the aggregate 13,
580 shares of common stock of the registrant.
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
II-1
3
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
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
II-2
4
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
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.
II-3
5
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 following Exhibits are filed as a part of this registration
statement:
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 Exchange National Bancshares, Inc. Incentive Stock Option Plan (filed
as Exhibit 10.2 to the registrant's annual report on Form 10-K for the
year ended December 31, 1999 and incorporated herein by reference).*
4.5 Form of Exchange National Bancshares, Inc. Incentive Stock Option
Agreement*
5 Opinion of Stinson, Mag & Fizzell, P.C.*
23.1 Consent of KPMG LLP.*
23.2 Consent of Stinson, Mag & Fizzell, P.C. (included in Exhibit 5).*
----------
* Indicates document filed herewith.
II-4
6
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 paragraphs (1)(i) and (1)(ii) do 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 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
II-5
7
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
8
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 24,
2001.
EXCHANGE NATIONAL BANCSHARES, INC.
(Registrant)
By: /s/ Donald L. Campbell
-------------------------------------
Donald L. Campbell
Chairman of the Board and President
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/ Donald L. Campbell President and Chairman of the Board of Directors
------------------------------------ (Principal Executive Officer) August 24, 2001
Donald L. Campbell
/s/ Richard G. Rose Treasurer (Principal Financial Officer and Principal
------------------------------------ Accounting Officer) August 24, 2001
Richard G. Rose
/s/ David T. Turner Director
------------------------------------
David T. Turner August 24, 2001
/s/ James R. Loyd Director
------------------------------------
James R. Loyd August 24, 2001
/s/ Charles G. Dudenhoeffer, Jr. Director
------------------------------------
Charles G. Dudenhoeffer, Jr. August 24, 2001
/s/ David R. Goller Director
------------------------------------
David R. Goller August 24, 2001
/s/ Philip D. Freeman Director
------------------------------------
Philip D. Freeman August 24, 2001
/s/ Kevin L. Riley Director
-----------------------------------------
Kevin L. Riley August 24, 2001
/s/ James E. Smith Director
------------------------------------
James E. Smith August 24, 2001
/s/ Gus S. Wetzel, II Director
------------------------------------
Gus S. Wetzel, II August 24, 2001
II-7
9
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.5 Form of Exchange National Bancshares, Inc. Incentive Stock
Option Agreement
5 Opinion of Stinson, Mag & Fizzell, P.C.
23.1 Consent of KPMG LLP.
23.2 Consent of Stinson, Mag & Fizzell, P.C. (included
in Exhibit 5).
II-8