-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EXeFl29Byjxt2e+P7ap0NNZfib8C7DhTv07ua9S56gtJnbIkVGWsS771kvfeGsCo aql8EWw3i/l/StMPAJkM4g== 0000892712-06-000324.txt : 20060404 0000892712-06-000324.hdr.sgml : 20060404 20060404160232 ACCESSION NUMBER: 0000892712-06-000324 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20060404 DATE AS OF CHANGE: 20060404 EFFECTIVENESS DATE: 20060404 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARSHALL & ILSLEY CORP/WI/ CENTRAL INDEX KEY: 0000062741 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 390968604 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-132977 FILM NUMBER: 06738116 BUSINESS ADDRESS: STREET 1: ATTN: OFFICE OF THE GENERAL COUNSEL STREET 2: 770 NORTH WATER STREET CITY: MILWAUKEE STATE: WI ZIP: 53202 BUSINESS PHONE: 4147657801 MAIL ADDRESS: STREET 1: 770 NORTH WATER ST CITY: MILWAUKEE STATE: WI ZIP: 53202 S-8 1 mis8.htm

As filed with the Securities and Exchange Commission on April 4, 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

MARSHALL & ILSLEY CORPORATION

(Exact Name of Registrant as Specified in Charter)


Wisconsin	39-0968604
(State of Incorporation)	(I.R.S. Employer Identification No.)

770 North Water Street
Milwaukee, Wisconsin	53202
(Address of Principal Executive Offices)	(Zip Code)

____________________________________

1994 Key Employee Stock Option Plan*

Gold Banc Corporation, Inc. 1996 Equity Compensation Plan*

Incentive Stock Option Plan, dated May 28, 1996*

1999 Stock Option and Equity Incentive Plan, dated March 22, 1999*

Trustcorp Financial, Inc. 1997 Non-Qualified Stock Option Plan, as amended**

____________________________________

Randall J. Erickson

Marshall & Ilsley Corporation

770 North Water Street

Milwaukee, Wisconsin 53202

(414) 765-7801

(Name, address and telephone number, including area code, of agent for service)

With copies to:

Christopher B. Noyes

Dennis F. Connolly

Godfrey & Kahn, S.C.

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 273-3500

CALCULATION OF REGISTRATION FEE


Title of securities to be registered	Amount to be registered	Proposed maximum offering price per share	Proposed maximum aggregate offering price ⁽¹⁾	Amount of registration fee ⁽¹⁾

Common Stock,

$1.00 par value

532,233

N/A

$23,194,714

$2,481.83

(1)

The registration fee was calculated pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The registration fee is based on the aggregate exercise price for the shares of Marshall & Ilsley common stock underlying the outstanding options as of March 30, 2006. There will be no further grants under any of the plans that are the subject of this filing.

* This plan was assumed by Marshall & Ilsley Corporation as of April 1, 2006 in connection with the merger of Gold Banc Corporation, Inc. with and into Marshall & Ilsley Corporation.

** This plan was assumed by Marshall & Ilsley Corporation as of April 1, 2006 in connection with the merger of Trustcorp Financial, Inc. with and into Marshall & Ilsley Corporation.

PART I

The documents containing the information specified in Part I of this Form S-8 Registration Statement (“Registration Statement”) will be sent or given to participants in the plans listed on the cover of this Registration Statement as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, 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 following documents are incorporated by reference in this Registration Statement (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended, which is referred to herein as the “Exchange Act”):


	(a)	The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005.

	(b)	The Registrant’s Current Reports on Form 8-K filed January 20, 2006, March 7, 2006 and March 17, 2006.

	(c)	The description of Marshall & Ilsley common stock set forth in the registration statement on Form 8-A filed October 18, 1999 pursuant to Section 12 of the Exchange Act, including any amendment or report filed with the SEC for the purpose of updating this description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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, shall be deemed incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.

Item 6. Indemnification of Directors and Officers

Sections 180.0850 to 180.0859 of the Wisconsin Business Corporation Law (the “WBCL”) require a corporation to indemnify a director or officer, to the extent that he or she has been successful on the merits or otherwise in the defense of a proceeding, which includes any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person, for all reasonable expenses incurred in the proceeding if the director or officer was a party because he or she is a director or officer of the corporation. A corporation is obligated to indemnify a director or officer against liability incurred by the director or officer in a proceeding to which the director or officer was a party because he or she is a director or officer of t he corporation, which liability includes the obligation to pay a judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employee benefit plan, and all reasonable expenses including fees, costs, charges, disbursements, attorney fees and other expenses, unless such liability was incurred as a result of the breach or failure to perform a duty which the director or officer owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the director or officer had reasonable cause to believe that his or her conduct was lawful or no reasonable cause to believe that his or her conduct was unlawful; (iii) a transaction from which the director or officer derived an improper personal profit; or (iv) willful misconduct.

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Unless otherwise provided in a corporation’s articles of incorporation or by-laws, or by written agreement, the director or officer seeking indemnification is entitled to select one of the following means for determining his or her right to indemnification: (i) by majority vote of a disinterested quorum of the board of directors, or if such quorum of disinterested directors cannot be obtained, by a majority vote of a committee duly appointed by the board of directors of two or more disinterested directors; (ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by affirmative vote of shareholders; (v) by a court; or (vi) with respect to any additional right to indemnification, by any other method permitted in Section 180.0858 of the WBCL.

Reasonable expenses incurred by a director or officer who is a party to a proceeding may be paid or reimbursed by a corporation at such time as the director or officer furnishes to the corporation a written affirmation of his or her good faith belief that he or she has not breached or failed to perform his or her duties to the corporation and a written undertaking to repay any amounts advanced if it is determined that indemnification by the corporation is not required.

The indemnification provisions of Section 180.0850 to 180.0859 of the WBCL are not exclusive. A corporation may expand a director’s or officer’s rights to indemnification: (i) in its articles of incorporation or by-laws; (ii) by written agreement; (iii) by resolution of its board of directors; or (iv) by resolution that is adopted, after notice, by a majority of all of the corporation’s voting shares then issued and outstanding.

As permitted by Section 180.0858 of the WBCL, Marshall & Ilsley has adopted indemnification provisions in its by-laws that closely track the statutory indemnification provisions of the WBCL with certain exceptions. In particular, Section 7.1 of Marshall & Ilsley’s by-laws, among other items, provides that (i) an individual shall be indemnified unless it is proven by a final judicial adjudication that indemnification is prohibited and (ii) payment or reimbursement of expenses, subject to certain limitations, will be mandatory rather than permissive. As permitted by Section 180.0857 of the WBCL, Marshall & Ilsley has purchased directors’ and officers’ liability insurance that insures Marshall & Ilsley’s directors and officers against certain liabilities that may arise under the Securities Act.

Item 8. Exhibits

4.1

1994 Key Employee Stock Option Plan incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated April 6, 2000 (Registration No. 333-34152)

4.2

Gold Banc Corporation, Inc. 1996 Equity Compensation Plan incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated May 20, 1999 (Registration No. 333-78871)

4.3

Incentive Stock Option Plan, dated May 28, 1996 incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated April 6, 2000 (Registration No. 333-34152)

4.4

1999 Stock Option and Equity Incentive Plan, dated March 22, 1999 incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated April 6, 2000 (Registration No. 333-34152)

4.5

Trustcorp Financial, Inc. 1997 Non-Qualified Stock Option Plan, as amended

Opinion of Godfrey & Kahn, S.C. regarding legality of the Common Stock being registered

23.1

Consent of Godfrey & Kahn, S.C. (included in Exhibit 5)

23.2

Consent of Deloitte & Touche LLP

Powers of Attorney

II-3

Item 9. Undertakings *

The undersigned Registrant hereby undertakes:

(a)

(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) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 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, 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 that remain unsold at the termination of the offering.

(b)

That, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act of 1934 (and, each filing of the Plan’s annual report pursuant to Section 15(d) of the 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 pursuant to the provisions described in Item 6 of this Registration Statement, 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has b een settled by

II-4

controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

______________

* Paragraphs correspond to Item 512(a), (b) and (h) of Regulation S-K.

II-5

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 Milwaukee, State of Wisconsin, on April 4, 2006.

MARSHALL & ILSLEY CORPORATION

By: /s/ Dennis J. Kuester

Dennis J. Kuester,

Chairman and Chief Executive Officer

(Principal Executive Officer)

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:


Signature	Title	Date

/s/ Dennis J. Kuester Dennis J. Kuester	Chairman and Chief Executive Officer (Principal Executive Officer)	April 4, 2006

/s/ Mark F. Furlong Mark F. Furlong	President and Chief Financial Officer (Principal Financial Officer)	April 4, 2006

/s/ Patricia R. Justiliano Patricia R. Justiliano	Senior Vice President and Corporate Controller (Principal Accounting Officer)	April 4, 2006

Directors:

Richard A. Abdoo, Andrew N. Baur, Jon F. Chait, John W. Daniels, Jr., Bruce E. Jacobs, Ted D. Kellner, Dennis J. Kuester, Katharine C. Lyall, John A. Mellowes, Edward L. Meyer, Jr., San W. Orr, Jr., Robert J. O’Toole, Peter M. Platten, III, John S. Shiely, James A. Urdan, Debra S. Waller, George E. Wardeberg and James B. Wigdale.

*By: /s/ Randall J. Erickson

Randall J. Erickson

As Attorney-in-Fact*

Date: April 4, 2006

*Pursuant to authority granted by powers of attorney, copies of which are filed herewith.

II-6

EXHIBIT INDEX

Exhibits

4.1

1994 Key Employee Stock Option Plan incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated April 6, 2000 (Registration No. 333-34152)

4.2

4.3

Incentive Stock Option Plan, dated May 28, 1996 incorporated by reference to the Registration Statement on Form S-8 of Gold Banc Corporation, Inc. dated April 6, 2000 (Registration No. 333-34152)

4.4

4.5

Trustcorp Financial, Inc. 1997 Non-Qualified Stock Option Plan, as amended

Opinion of Godfrey & Kahn, S.C. regarding legality of the Common Stock being registered

23.1

Consent of Godfrey & Kahn, S.C. (included in Exhibit 5)

23.2

Consent of Deloitte & Touche LLP

Powers of Attorney

II-7

EX-4.5 2 exh45.htm TRUSTCORP FINANCIAL 1997 NON-QUALIFIED STOCK OPTION PLAN, AS AMENDED

Exhibit 4.5

TRUSTCORP FINANCIAL, INC.

1997 NON-QUALIFIED STOCK OPTION PLAN, AS AMENDED

Purpose of Plan. The purpose of this 1997 Non-Qualified Stock Option Plan, as amended (“Plan”), is to promote the best interests of Trustcorp Financial, Inc. (the “Company”) and its shareholders by encouraging participants to acquire a proprietary interest in the Company and thereby provide an incentive for such participants to increase their efforts on behalf of the Company.

Granting of Options.

(a)

The Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”), or with respect to any time when there is no such committee, the Board of Directors as a whole (the “Board”), may from time to time grant options (“Options”) to purchase a specified number of shares of the Company’s common stock, $0.01 par value per share (“Option Shares”), to those employees of the Company or its subsidiaries who may be designated by the Company’s Chief Executive Officer and recommended for the grant of such Option in such officer’s discretion.

(b)

The Compensation Committee may grant Options to directors of the Company’s subsidiaries who may be designated by the Company’s Chief Executive Officer and recommended for the grant of such Option in such officer’s discretion, by resolution of a majority of disinterested members.

(c)

The Compensation Committee may from time to time grant Options to the Company’s Chief Executive Officer in its discretion, by resolution of a majority of disinterested members.

Maximum Number of Option Shares.

(a)

Options may not be granted aggregating more than 400,000 Option Shares; provided that if any Option shall expire without being fully exercised, the unissued Option Shares shall again become available for option under this Plan.

(b)

In the event of any stock dividend on, reclassification, split-up or combination of, or other change in, the Company’s common stock, then the number or kind of shares for which Options may be granted hereunder shall be correspondingly added to, increased, diminished or changed proportionately.

(c)

The Company shall at all times reserve a number of shares of common stock for issuance hereunder equal to the number of Option Shares for which Options are then outstanding, which reserved shares may consist of previously-unissued Shares or treasury Shares or any combination thereof.

Terms of Options. The terms of each Option shall be substantially in the form of Exhibit A, the terms and conditions of which are hereby incorporated into this Plan, or as otherwise determined by the Compensation Committee in a specific case.

Rights of Option Holder. No person shall have any rights under any Option unless and until he or she shall have entered into an Option Agreement with respect to such Option. No person to whom an Option has been granted and who has entered into an Option Agreement (“Optionee”) shall have any rights of a stockholder as to Shares under option until such Shares shall have been issued to him or her upon due exercise of the Option. The grant of an Option shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, or to merge or to consolidate, or to dissolve or liquidate, or to sell or transfer any or all of its business or assets.

Duration of Plan. Options may be granted under this Plan from the effective date of its adoption by the Board until the effective date of its termination by the Board. The Board may amend or terminate the Plan at any time; however, no amendment or termination shall adversely affect the rights of an Optionee under any Option then in effect, except as the Company and the Optionee may otherwise agree.

Administration of Plan.

The Plan shall be administered by the Compensation Committee, which shall have the power to interpret the Plan, to make rules relating to the Plan, and make all other determinations necessary or advisable for its administration except those specifically reserved to the Chief Executive Officer in the Plan. However, the Compensation Committee may not change the terms and conditions of an Option adversely to the Optionee, except to the extent, if any, provided in such Option or consented to by the Optionee. The determination by the Company’s Chief Executive Officer as to the employees or directors eligible to receive Options and the approval of the individual Optionees and the exercise price by the Compensation Committee shall be conclusive.

This Plan was adopted by the Board of Directors on October 2, 1997 and amended on November 14, 2000, to increase the maximum number of Option Shares pursuant to Section 3(a) hereof from 300,000 to 400,000.

Exhibit A

TRUSTCORP FINANCIAL, INC.

1997 NON-QUALIFIED STOCK OPTION PLAN, AS AMENDED

OPTION AGREEMENT

THIS OPTION AGREEMENT is entered into effective ____________, 20__ (the “Option Date”), between Trustcorp Financial, Inc., a Missouri corporation (the “Company”), and

____________________________ (“Optionee”).

WHEREAS, the Company has adopted its 1997 Non-Qualified Stock Option Plan, as amended (the “Plan”), to encourage selected employees of the Company to acquire a proprietary interest in the Company through the grant of options to purchase shares of its Common Stock, and has determined to afford the Optionee an option to purchase common stock pursuant to the Plan as hereafter described,

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereto do hereby agree as follows:

Grant of Option. The Company hereby grants to the Optionee the right and option (the “Option”) to purchase all or any part of the number of shares of the common stock, $0.01 par value per share, of the Company set forth below (the “Option Shares”), at the purchase price set forth below (the “Exercise Price”) and on the other terms and conditions herein set forth.

Total number of Option Shares: ________

Exercise price per Option Share: $_____

Dates When Option Exercisable.

(a)

Exercisability. The Option shall first become exercisable as to one-third of the total number of Option Shares on the first anniversary of the Option Date, and as to an additional one-third of the total number of Option Shares on each of the second and third anniversaries of the Option Date. However, if a Change in Control occurs prior to the Expiration Date the Option shall become immediately exercisable as to all Option Shares, and the Company will promptly notify the Optionee of such fact. For the purposes of this Option, “Change in Control” means:

(i)

a merger or consolidation of the Company with or into any other entity unless after such event at least a majority of the voting power of the surviving or resulting entity is beneficially owned by persons who beneficially own a majority of the voting power of the Company immediately prior to such event, or

(ii)

the sale of all or substantially all the assets of the Company, or

(iii)

the dissolution of the Company, or

(iv)

a change in the identity of a majority of the members of the Company’s board of directors within any twelve-month period, which change or changes are not recommended by the incumbent directors determined immediately prior to any such change or changes.

(b)

Expiration. The Option and all the Optionee’s rights with respect thereto shall terminate, to the extent the Option has not already been exercised, at the first to occur of:

(i)

The regularly scheduled closing time of the Company’s main business office on the tenth anniversary of the Option Date, or

(ii)

Except as provided in paragraph 2(c) or 2(d), the effective time of termination, for whatever reason, with or without cause (including without limitation by the voluntary act, death, disability, or retirement of the Optionee), of the Optionee’s Employment,

the time of such termination being referred to herein as the “Expiration Date.” For purposes of this Agreement, “Employment” means an individual’s status as either (A) an employee for Federal income tax withholding purposes of the Company or any subsidiary of the Company, or (B) a duly elected or appointed member of the board of directors of the Company or any subsidiary of the Company. It is expressly understood and agreed that nothing herein is intended or shall be construed as an employment contract or as implying any obligation on the part of the Company to continue the Optionee’s Employment for any period of time after the Option Date.

(c)

Exercise After Death, Disability or Retirement. In the event of the termination of the Optionee’s Employment by reason of the Optionee’s death, disability or retirement on or after attaining the age of 65, then the Option may be exercised by the Optionee or the executor or administrator of the estate of the Optionee or the person or persons to whom the Option shall have been transferred by will or by the laws of descent and distribution (as the case may be), prior to the earlier of (A) the Expiration Date as determined under paragraph 2(b)(i), or (B) one year after the date of such termination of Employment, but only to the extent it was exercisable on the date of such termination of Employment.

(d)

Exercise After Termination of Employment by the Company Without Cause. If the Optionee’s Employment is terminated by the Company for any reason other than Cause or the reasons set forth in paragraph 2(b), then the Option may be exercised by the Optionee prior to the earlier of (A) the Expiration Date as determined under paragraph 2(b)(i), or (B) three months after such termination of Employment, but only to the extent it was exercisable on the date of termination of the Optionee’s Employment. For purposes of this Agreement, “Cause” has the meaning set forth in the Optionee’s written employment agreement with the Company, or if no such agreement exists or if “Cause” is not defined in such agreement, then “Cause” means:

(i)

the Optionee’s conviction (including a plea of nolo contendere) of a felony or any other crime involving moral turpitude, unethical business conduct, or dishonesty involving the Company or persons having business dealings with the Company, or

(ii)

any dishonest, wrongful or unethical conduct by the Optionee which in the judgment of a majority of the board of directors of the Company (with the Optionee not present or voting) may reasonably be expected to materially adversely affect the Company’s business or reputation, or

(iii)

the material refusal to fully perform, or the material negligent performance of, the Optionee’s duties to the Company or its subsidiaries, or

(iv)

the Optionee’s refusal to transfer to a new employment location which is less than 60 miles away from the Optionee’s current employment location, or

(v)

such other reason as constitutes “cause” under the common law of Missouri as then in effect.

The determination of whether a particular termination is for Cause for purposes of these provisions shall be made by the board of directors of the Company and such decision, unless not made in good faith, shall be conclusive and non-appealable.

Method of Exercising Option. The Optionee (or representative as provided above) may exercise the Option hereby granted on one or more occasions at his or her discretion, on each occasion for all or any part of the Option Shares for which the Option is then exercisable, by each time delivering to the main business office of the Company, addressed to the attention of its Chief Executive Officer or Secretary, (1) a written notice stating his or her election to exercise the Option and the number of Option Shares to be purchased, and (2) cash or a check in full payment of the purchase price of the Option Shares to be purchased plus, if the Company so requires, the amount of any Federal and state withholding taxes payable by the Company or any of its subsidiaries as a result of such exercise. The Company will advise the Optionee, upon the Optionee’s reasonable prior request, of the required amount of suc h taxes, if any. The Option shall be deemed to be exercised only upon receipt of such notice and payment by the Chief Executive Officer or Secretary.

Non-Transferability of Option. The Option may be exercised only by the Optionee or as otherwise provided above or by the Plan. The rights granted by this Option may not be assigned, transferred, pledged or hypothecated in any way, other than by will or by operation of law and shall not be subject to execution, attachment or similar process. In the event of the bankruptcy of the Optionee, or in the event of any prohibited assignment, transfer, pledge, hypothecation or other disposition of the Option, or the levy of any execution, attachment or similar process upon the Option, the Option shall automatically expire and shall be null and void. Notwithstanding the foregoing, however, with prior notice to the Company the rights granted by this Option may be transferred between the Optionee in his or her personal capacity and the Optionee as trustee of a trust (A) of which the Optionee is both sole trustee and sole beneficiary during his or her lifetime, and (B) all of which is treated under subpart E of Part I of Subchapter J of Chapter 1 of Subtitle A of the Internal Revenue Code of 1986, as amended, as owned by the Optionee.

Share Adjustments. In the event of any stock dividend on, reclassification, split-up or combination of, or other change in, the Company’s common stock, then the number or kind

of Option Shares shall be correspondingly added to, reclassified, increased, diminished or changed proportionately, without increase or decrease in the aggregate purchase price of all Option Shares.

No Rights of Optionee as Shareholder. The Optionee shall have no rights respecting this Option or the Option Shares except as expressly set forth herein or in the Plan, a copy of which the Optionee hereby acknowledges having received; and the Optionee shall have no rights as a shareholder with respect to any Option Shares until this Option has been duly exercised as to such Option Shares in accordance with the terms hereof. The grant of this Option shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its common stock or its capital or business structure, or to merge or to consolidate, or to dissolve or liquidate, or to sell or transfer any or all of its business or assets.

Securities Laws. Neither this Option nor any of the Option Shares have been registered under the Securities Act of 1933, as amended, or the securities laws of any state, in reliance on exemptions from the registration provisions thereof. By acceptance hereof, the Optionee acknowledges such fact and agrees that this Option and any Option Shares will be held for investment and not with a view to distribution or resale, and may not be made subject to a security interest, pledged, hypothecated, or otherwise transferred without either an effective registration statement under such Act and compliance with applicable state securities laws, which may not be possible, or an opinion of legal counsel satisfactory to the attorneys for the Company that such registration is not required under such Act and that applicable state securities laws will not be violated by such action; and the Optionee further agrees that t he certificates for such Option Shares shall bear a legend substantially to such effect. The Optionee hereby acknowledges receipt of a copy of the Plan.

Non-Solicitation Covenant. As additional consideration for the granting of this Option to the Optionee by the Company, the Optionee hereby covenants to and with the Company that, regardless of whether the Option is exercised, if either (a) the Optionee voluntarily terminates his or her Employment or (b) the Company terminates the Optionee’s Employment for Cause, then during the two year period beginning on the date the Optionee’s Employment terminates the Optionee will not:

(i)

Divert or attempt to divert clients, customers (whether or not such persons have done business with the Company or its subsidiaries more than once) or accounts of the Company or its subsidiaries, or

(ii)

Entice or induce or in any manner attempt to influence any person who is then an employee of the Company or its subsidiaries to leave such Employment for the purpose of engaging in the banking business in the St. Louis metropolitan area or in any other business in competition with the Company or its subsidiaries.

The Optionee agrees that monetary damages may not be an adequate remedy for violation of any provision of this Agreement and acknowledges the Company’s right to seek injunctive relief for any such violation. This Section 8 will not apply if the Optionee’s Employment terminates for any reason after a Change in Control.

IN WITNESS WHEREOF, the Company and the Optionee have executed this Option Agreement as of the date first above written.

Company:

TRUSTCORP FINANCIAL, INC.

By: ____________________________________

President and Chief Executive Officer

Optionee:_________________________________

EX-5 3 exh5.htm OPINION OF GODFREY & KAHN, S.C.

[exh5001.jpg]

Exhibit 5

780 NORTH WATER STREET

MILWAUKEE, WI 53202-3590

TEL 414-273-3500

FAX 414-273-5198

www.gklaw.com

GODFREY & KAHN, S.C.

MILWAUKEE

APPLETON

GREEN BAY

WAUKESHA

LAFOLLETTE GODFREY & KAHN

MADISON

April 3, 2006

Marshall & Ilsley Corporation

770 North Water Street

Milwaukee, Wisconsin 53202

RE: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as your counsel in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission on or about April 3, 2006 relating to the issuance by you of up to 532,233 shares of common stock, $1.00 par value, (the “Shares”), in the manner set forth in the Registration Statement.

We have examined: (1) the Registration Statement, (2) the Company’s Restated Articles of Incorporation, and By-Laws, each as amended to date, (3) certain resolutions of the Company’s Board of Directors, and (4) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.

In examining the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies, and the authenticity of the originals of any such documents.

Based on and subject to the foregoing, we are of the opinion that the Shares, when issued as contemplated in the Registration Statement, will be duly authorized, validly issued, fully paid and nonassessable, except to the extent provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (the “WBCL”), or any successor provision. Under Section 180.0622(2)(b) of the WBCL, holders of common stock are liable up to the amount equal to the par value of the common stock held by such holders for all debts owing to the corporation’s employees for services performed for the corporation, but not exceeding six months’ service in any one case. Certain Wisconsin courts have interpreted “par value” to mean the full amount paid by the purchaser of shares upon the issuance thereof.

We consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, however, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended, or within the category of persons whose consent is required by Section 7 of said Act.

Very truly yours,

GODFREY & KAHN, S.C.

/s/ Godfrey & Kahn

GODFREY & KAHN IS A MEMBER OF TERRALEX®, A WORLDWIDE NETWORK OF INDEPENDENT LAW FIRMS.

EX-23.2 4 exh23.htm CONSENT OF DELOITTE & TOUCHE LLP

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports relating to the consolidated financial statements of Marshall & Ilsley Corporation, and management’s report on the effectiveness of internal control over financial reporting dated February 24, 2006, appearing in the Annual Report on Form 10-K of Marshall & Ilsley Corporation for the year ended December 31, 2005.

/s/ Deloitte & Touche LLP

Milwaukee, Wisconsin
March 31, 2006

EX-24 5 exh24.htm POWERS OF ATTORNEY

Exhibit 24