-----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, CortMkPGnx/FAGs/Uao0puBAj52w5WuexUookOy/XedUHpML+cFBZujdGVdNgWmy MvZCrRlSra9KMnNKdffLlw== 0000950114-96-000294.txt : 19961231 0000950114-96-000294.hdr.sgml : 19961231 ACCESSION NUMBER: 0000950114-96-000294 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19961112 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCANTILE BANCORPORATION INC CENTRAL INDEX KEY: 0000064907 STANDARD INDUSTRIAL CLASSIFICATION: 6021 IRS NUMBER: 430951744 STATE OF INCORPORATION: MO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-09803 FILM NUMBER: 96660104 BUSINESS ADDRESS: STREET 1: P O BOX 524 STREET 2: P O BOX 524 CITY: ST LOUIS STATE: MO ZIP: 63166-0524 BUSINESS PHONE: 3144252525 MAIL ADDRESS: STREET 1: P O BOX 524 CITY: ST LOUIS STATE: MO ZIP: 63166-0524 FORMER COMPANY: FORMER CONFORMED NAME: MERCANTILE TRUST CO DATE OF NAME CHANGE: 19720229 POS AM 1 AMENDMENT NO. 1 ON FORM S-8 TO FORM S-4 1 As Filed With the Securities and Exchange Commission on November 12, 1996 Registration No. 333-09803 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ---------------------------- AMENDMENT NO. 1 (Post-Effective) ON FORM S-8 TO FORM S-4 Registration Statement Under The Securities Act of 1933 ---------------------------- MERCANTILE BANCORPORATION INC. (Exact name of registrant as specified in its charter) MISSOURI 43-0951744 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) P.O. Box 524 St. Louis, Missouri 63166-0524 (Address of Principal Executive Offices) TODAY'S BANCORP, INC. 1989 NON-QUALIFIED STOCK OPTION PLAN (Full title of the plan) ---------------------------- JOHN Q. ARNOLD Senior Executive Vice President and Chief Financial Officer Mercantile Bancorporation Inc. P.O. Box 524 St. Louis, Missouri 63166-0524 (Name and address of agent for service) Telephone: (314) 425-2525 ------------------------------- Copy to: JON W. BILSTROM, ESQ. ROBERT M. LAROSE, ESQ. General Counsel and Secretary Thompson Coburn Mercantile Bancorporation Inc. One Mercantile Center P.O. Box 524 St. Louis, Missouri 63101 St. Louis, Missouri 63166-0524 (314) 552-6000 (314) 425-2525 ------------------------------- CALCULATION OF REGISTRATION FEE ==================================================================================================================================
Proposed Proposed maximum Title of each class of Amount to be maximum offering aggregate offering Amount of securities to be registered registered price per unit price registration fee - - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $5.00 par value 49,638 N/A N/A ================================================================================================================================= Includes one attached Preferred Share Purchase Right per share. The registrant previously paid $17,053.67 with the original filing on August 8, 1996 to register 1,177,066 shares of Mercantile Bancorporation Inc. Common Stock, including the 49,637 shares which may be issued pursuant to the TODAY'S BANCORP, INC. 1989 Non-Qualified Stock Option Plan, as amended.
------------------------------------ This amendment shall become effective in accordance with the provisions of Rule 464 promulgated under the Securities Act of 1933. 2 The undersigned registrant hereby files this post-effective amendment (the "Registration Statement") to register on Form S-8 49,638 shares of Mercantile Bancorporation Inc. (hereinafter the "Company" or the "Registrant") Common Stock, $5.00 par value, and attached Preferred Share Purchase Rights of the Company, previously registered on Form S-4 (File No. 333-09803) incorporated herein by reference, for issuance pursuant to options granted under the TODAY'S BANCORP, INC. 1989 Non-Qualified Stock Option Plan, as amended (the "Plan"), pursuant to the terms and conditions of the Agreement and Plan of Merger dated July 9, 1996 by and among the Company, Mercantile Bancorporation Incorporated of Illinois and TODAY'S BANCORP, INC. (such transaction was consummated on November 7, 1996). Item 3. Incorporation of Documents by Reference. --------------------------------------- The following documents filed by the Company with the Securities and Exchange Commission under the Securities Exchange Act of 1934 are incorporated herein by reference: (a) MBI's Report on Form 10-K for the year ended December 31, 1995. (b) MBI's Reports on Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996. (c) MBI's Current Reports on Form 8-K dated January 16, 1996, March 11, 1996 and November 6, 1996. (d) The description of the Company's Common Stock set forth in Item 1 of the Company's Registration Statement on Form 8-A, dated March 5, 1993, and any amendment or report filed for the purpose of updating such description. (e) The description of the Company's Preferred Share Purchase Rights set forth in Item 1 of the Company's Registration Statement on Form 8-A, dated March 5, 1993, and any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 remaining unsold, shall be deemed to be incorporated by reference herein and made a part hereof from the date any such document is filed. The information relating to the Company contained in this Registration Statement does not purport to be complete and should be read together with the information in the documents incorporated by reference herein. Any statement contained herein or in a document incorporated herein by reference shall be deemed to be modified or superseded for purposes hereof to the extent that a subsequent statement contained herein or in any other subsequently filed document incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof. Where any document or part thereof is incorporated by reference in the Registration Statement, the Company will provide without charge to each person to whom a Prospectus with respect to the Plan is delivered, upon written or oral request of such person, a copy of any and all of the information incorporated by reference in the Registration Statement, excluding exhibits unless such exhibits are specifically incorporated by reference. - 2 - 3 Item 6. Indemnification of Directors and Officers. ----------------------------------------- Sections 351.355(1) and (2) of The General and Business Corporation Law of the State of Missouri provide that a 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, suit or proceeding 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, 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, except that, in the case of an action or suit by or in the right of the corporation, the corporation may not indemnify such persons against judgments and fines and no person shall be indemnified as to 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 such person is fairly and reasonably entitled to indemnity for proper expenses. Section 351.355(3) provides that, to the extent that a director, officer, employee or agent of the corporation has been successful in the defense of any such action, suit or proceeding or any claim, issue or matter therein, he shall be indemnified against expenses, including attorneys' fees, actually and reasonably incurred in connection with such action, suit or proceeding. Section 351.355(7) provides that a corporation may provide additional indemnification to any person indemnifiable under subsection (1) or (2), provided such additional indemnification is authorized by the corporation's articles of incorporation or an amendment thereto or by a shareholder-approved bylaw or agreement, and provided further that no person shall thereby be indemnified against conduct which was finally adjudged to have been knowingly fraudulent, deliberately dishonest or willful misconduct or which involved an accounting for profits pursuant to Section 16(b) of the Securities Exchange Act of 1934. Article 12 of the Restated Articles of Incorporation of the Registrant provides that the Registrant shall extend to its directors and executive officers the indemnification specified in subsections (1) and (2) and the additional indemnification authorized in subsection (7) and that it may extend to other officers, employees and agents such indemnification and additional indemnification. Pursuant to directors' and officers' liability insurance policies, with total annual limits of $30,000,000, the Registrant's directors and officers are insured, subject to the limits, retention, exceptions and other terms and conditions of such policy, against liability for any actual or alleged error, misstatement, misleading statement, act or omission, or neglect or breach of duty by the directors or officers of the Registrant, individually or collectively, or any matter claimed against them solely by reason of their being directors or officers of the Registrant. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling the Company pursuant to such provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is therefore unenforceable. Item 8. Exhibits. -------- See Exhibit Index located at page 7 hereof. - 3 - 4 Item 9. Undertakings. ------------ The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. - 4 - 5 SIGNATURES ---------- The Registrant. 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 Amendment No. 1 to the Registration Statement relating to the acquisition of TODAY'S BANCORP, INC. to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of St. Louis, State of Missouri, on the 7th day of November, 1996. 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 date indicated. MERCANTILE BANCORPORATION INC. By/s/ Thomas H. Jacobsen -------------------------------- Thomas H. Jacobsen Chairman of the Board, President 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 date indicated.
Signature Title Date --------- ----- ---- /s/ Thomas H. Jacobsen Chairman of the Board, November 7, 1996 - - ------------------------------ President, Chief Executive Thomas H. Jacobsen Officer and Director Principal Executive Officer /s/ John Q. Arnold Senior Executive Vice President November 7, 1996 - - ------------------------------ and Chief Financial Officer John Q. Arnold Principal Financial Officer /s/ Michael T. Normile Senior Vice President - Finance November 7, 1996 - - ------------------------------ and Control Michael T. Normile Principal Accounting Officer Director November 7, 1996 - - -------------------------------- Harry M. Cornell, Jr. Director November 7, 1996 - - -------------------------------- William A. Hall - 5 - 6 Signature Title Date --------- ----- ---- Director November 7, 1996 - - -------------------------------- Thomas A. Hays Director November 7, 1996 - - -------------------------------- Frank Lyon, Jr. Director November 7, 1996 - - -------------------------------- Edward A. Mueller Director November 7, 1996 - - -------------------------------- Robert W. Murray Director November 7, 1996 - - -------------------------------- Harvey Saligman Director November 7, 1996 - - -------------------------------- Craig D. Schnuck Director November 7, 1996 - - -------------------------------- Robert L. Stark Director November 7, 1996 - - -------------------------------- Patrick T. Stokes Director November 7, 1996 - - -------------------------------- John A. Wright
By/s/ Thomas H. Jacobsen ----------------------------------- Thomas H. Jacobsen Thomas H. Jacobsen, by signing his name hereto, does sign this document on behalf of the persons named above, pursuant to a power of attorney duly executed by such persons and previously filed. - 6 - 7 EXHIBIT INDEX -------------
Exhibit No. Page - - ----------- ---- 4.1 Form of Indenture Regarding Subordinated Securities between the Company and The First National Bank of Chicago, Trustee, filed as Exhibit 4.1 to the Company's Report on Form 8-K dated September 24, 1992, is incorporated herein by reference. 4.2 Rights Agreement dated as of May 23, 1988 between the Company and Mercantile Bank, as Rights Agent (including as exhibits thereto the form of Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock and the form of Right Certificate), filed as Exhibits 1 and 2 to the Company's Registration Statement No. 0-6045 on Form 8-A, dated May 24, 1988, is incorporated herein by reference. 5.1 Opinion of Thompson Coburn as to the legality of the securities being registered. 10.1 Northwest Illinois Bancorp, Inc. Nonqualified Stock Option Plan, as amended. 23.1 Consent of KPMG Peat Marwick LLP with regard to use of its report on the Company's financial statements. 23.2 Consent of Thompson Coburn (included in Exhibit 5.1). 24.1 Power of Attorney. - - -------------- Previously filed Filed herewith
- 7 - EX-5.1 2 OPINION RE LEGALITY 1 Exhibit 5.1 ----------- Thompson Coburn Attorneys at Law One Mercantile Center St. Louis, Missouri 63101-1693 314-552-6000 FAX 314-552-7000 November 12, 1996 Mercantile Bancorporation Inc. P.O. Box 524 St. Louis, Missouri 63166-0524 Re: Amendment No. 1 on Form S-8 to Form S-4 -- 49,637 Shares of Mercantile Bancorporation Inc. Common Stock, $5.00 Par Value ------------------------------------------------------------ Ladies and Gentlemen: We refer you to the post-effective amendment on Form S-8 to Form S-4 (File No. 333-09803) filed by Mercantile Bancorporation Inc. (the "Company") on November 12, 1996 (the "Registration Statement") with the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended, pertaining to the proposed issuance by the Company of up to 49,637 shares of the Company's common stock, $5.00 par value (the "Shares"), pursuant to the TODAY'S BANCORP, INC. 1989 Non-Qualified Stock Option Plan (the "Plan"), all as provided in the Registration Statement. In rendering the opinions set forth herein, we have examined such corporate records of the Company, such laws and such other information as we have deemed relevant, including the Company's Restated Articles of Incorporation and Bylaws, as amended and currently in effect, the resolutions adopted by the Executive Committee of the Company's Board of Directors relating to the Plan, certificates received from state officials and statements we have received from officers and representatives of the Company. In delivering this opinion, the undersigned assumed the genuineness of all signatures; the authenticity of all documents submitted to us as originals; the conformity to the originals of all documents submitted to us as certified, photostatic or conformed copies; the authenticity of the originals of all such latter documents; and the correctness of statements submitted to us by officers and representatives of the Company. Based only on the foregoing, the undersigned is of the opinion that: 1. The Company has been duly incorporated and is validly existing under the laws of the State of Missouri; and 2. The Shares to be issued by the Company pursuant to the Registration Statement have been duly authorized by the Company and, when issued by the Company in accordance with the Plan, will be duly and validly issued and will be fully paid and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Thompson Coburn EX-10.1 3 NONQUALIFIED STOCK OPTION PLAN 1 Exhibit 10.1 ------------ NORTHWEST ILLINOIS BANCORP, INC. NONQUALIFIED STOCK OPTION PLAN, AS AMENDED 1. Purpose. The purpose of the Northwest Illinois Bancorp, Inc. Nonqualified Stock Option Plan (the "Plan") as hereinafter set forth, is to enable Northwest Illinois Bancorp, Inc., an Illinois corporation (the "Corporation"), and its subsidiary banks to attract, retain, and reward key managerial employees, by offering them an opportunity to have a greater proprietary interest in and closer identity with the Corporation and with its financial success. The Plan is not intended to be a plan within the meaning of that term in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"). Proceeds of cash or property received by the Corporation for the sale of Northwest Illinois Bancorp, Inc. Common Stock ("Common Stock") pursuant to options granted under the Plan will be used for general corporate purposes. 2. Administration. The Plan shall be administered by a committee (the "Committee") appointed by the board of directors of the Corporation (the "Board"), and composed of at least three Board members who are members of the Compensation Committee of the Board. All members of the Committee shall be made up of persons who, at the time such Committee members exercise their discretion with respect to the Plan, are not, and were not at any time during the prior 12-month period, eligible for selection as a person to whom options may be granted pursuant to the Plan, or pursuant to any other plan of the Corporation or any of its affiliates entitling the participants therein to acquire stock, options, or stock appreciation rights of the Corporation or any of its affiliates (hereafter referred to as a "Board member eligible to receive options"). Subject to the express provisions of the Plan, the Committee may interpret the Plan, prescribe, amend, and rescind rules and regulations relating to it, determine the terms and provisions of the respective participants' agreements (which need not be identical), and make such other determinations as it deems necessary or advisable for the administration of the Plan. The decisions of the Committee on matters within their jurisdiction under the Plan shall be conclusive and binding. No members of the Board or the Committee shall be liable for any action taken or determination made in good faith. 3. Eligibility. Options may be granted under this Plan only to key managerial employees of the Corporation or its subsidiaries. 2 the Committee shall determine, within the provisions of the Plan, those key managerial employees to whom, and the time or times at which, options shall be granted. In making such determinations, the Committee may take into account the nature of the services rendered by the employee, his or her present and potential contributions to the Corporation's success, and such other factors as the Committee in its discretion shall deem relevant. 4. Granting of Options. a. Powers of the Committee. The Committee shall execute its powers in accordance with the provisions of the Plan, and shall determine, in accordance with the provisions of the Plan, the number of shares of Common Stock to be subject to each option, the duration of each option, the exercise price (option price) under each option, the time or times within which (during the term of the option) all or portions of each option may be exercised, and whether cash, Common Stock, or other property may be accepted in full or partial payment upon exercise of a stock option. b. Number of Options. i. As soon as practicable after the date an employee is determined to be eligible under Section 3 hereof, and after each sixth anniversary of such date, the Committee may, in its discretion, grant to such eligible employee a number of options equal to the employee's base salary on the date on which such options are granted multiplied by a compensation factor, and such product shall be divided by the option price determined under Section 6(a) hereof. For purposes of the preceding sentence, the compensation factor shall be determined by the Committee, in its discretion, but shall not exceed 2.0 for the President and Chief Executive Officer of the Corporation and 1.5 for any other eligible employee. ii. The Committee may, in its discretion, grant additional options to an eligible employee in an amount equal to the following: 1. the number of options exercised by the eligible employee under the provisions of the Plan, or 2. the number of options equal to the amount described in paragraph (iii) below, less the - 2 - 3 number of outstanding unexercised options held by the eligible employee. iii. For each successive six-year period beginning on the date an employee is determined to be eligible under Section 3 hereof, the maximum number of outstanding unexercised options that may be held by such eligible employee under this Section 4(b) shall not exceed the amount under paragraph (i) above determined using the maximum compensation factor applicable to such eligible employee. However, in the event of an increase in an eligible employee's base salary or compensation factor during a calendar year, the amount under paragraph (i) above, determined in accordance with the preceding sentence, shall be redetermined as of such calendar year, and the redetermined amount shall be the maximum number of outstanding unexercised options that may be held by such eligible employee under this Section 4(b). 5. Common Stock. Each option granted under the Plan shall be convertible into one share of Common Stock, unless adjusted in accordance with the provisions of Section 7 hereof. Options may be granted for a number of shares not to exceed, in the aggregate 160,000 shares of Common Stock ($5.00 par value) of the Corporation, except that such number of shares shall be adjusted in accordance with the provisions of Section 7 hereof. Such shares may be either authorized but unissued shares or reacquired shares. In the event that any option granted under the Plan expires unexercised, or is surrendered by a participant for cancellation, or is terminated or ceases to be exercisable for any other reason without having been fully exercised, prior to the termination of the Plan, the shares theretofore subject to such option, or to the unexercised portion thereof, shall again become available for new options to be granted under the Plan to any eligible employee (including the holder of such former option) at an option price determined in accordance with Section 6(a) hereof, which price may then be greater or less than the option price of such former option. 6. Required Terms and Conditions of Options. The options granted under the Plan shall be in such form and upon such terms and conditions as the Committee shall from time to time determine, subject to the provisions of the Plan, including the following: a. Option Price. The option price of each option to purchase Common Stock shall be at least 100% of the average of the - 3 - 4 closing prices of the Common Stock (subject to such option) on the securities exchange on which such Common Stock is traded on the 10 most recent trading days prior to the time such option is granted in accordance with procedures established by the Committee. b. Maximum Term. No option shall be exercisable after the expiration of six years from the date it is granted. c. Minimum Term. No option shall be exercisable until after the expiration of 12 months from the date it is granted. d. Termination of an Option. i. In the event that a participation in the Plan pursuant to Sections 3 and 4 hereof (the "Participant") shall cease to be employed by the Corporation and its subsidiaries for any reason other than death, "disability", or "substantial cause" (as defined in this subsection), the Participant shall, except as provided in Section 6(b) or 7 hereof, exercise his option not later than three months after such cessation of employment, but only as to such number of shares as to which his option was exercisable at the date of such cessation of employment. ii. If cessation of employment occurs by reason of the disability of the Participant (within the meaning of Section 105(d)(4) of the Code), the Participant shall exercise his option in accordance with paragraph (i) above, except that the three-month period shall be extended to a period of one year. iii. If employment is terminated at the request of the Corporation for substantial cause, the Participant's right to exercise his option shall terminate at the time of notice of termination of employment is given by the Corporation to such Participant. For purposes of this paragraph, substantial cause shall mean: 1. the commission of a criminal act against, or in derogation of the interests of, the Corporation or its subsidiaries; 2. the divulgence of confidential information about the Corporation or its subsidiaries to the public; - 4 - 5 3. the interference with the relationship between the Corporation or its subsidiaries and any major supplier or customer; or 4. the performance of any similar action that the Committee, in its sole discretion, may deem to be sufficiently injurious to the interest of the Corporation or its subsidiaries to constitute substantial cause for termination. iv. If a Participant dies while in the employ of the Corporation or its subsidiaries, or within three months after cessation of such employment (except a cessation of employment described in paragraph (iii) above), his estate, personal representative, or the person that acquires his option by bequest or inheritance or by reason of his death shall, except as provided in Section 6(b) or 7 hereof, exercise his option at any time within one year from the date of his death, but only as to the number of shares as to which his option was exercisable on the date of his death. v. In any such event, unless so exercised within the period as aforesaid, the option shall terminate at the expiration of said period. The time of cessation of employment and whether an authorized leave of absence or absence on military or government service shall constitute cessation of employment, for the purpose of the Plan, shall be determined by the Committee. e. Method of Exercise. Options may be exercised by giving written notice to the Treasurer of the Corporation, stating the number of shares of Common Stock with respect to which the option is being exercised and tendering payment thereof. Payment for Common Stock, whether in cash or in other shares of Common Stock, shall be made in full at the time that an option, or any part thereof, is exercised. 7. Adjustments. a. The aggregate number of shares of Common Stock with respect to which options may be granted hereunder, the number of shares of Common Stock subject to each outstanding option, and the option price per share for each such option, may all be appropriately adjusted, as the Committee may determine, for any increase or decrease in the number of shares of issued Common Stock of the Corporation resulting from a subdivision or consolidation of shares whether through reorganization, - 5 - 6 payment of a share dividend or other increase or decrease in the number of such shares outstanding effected without receipt of consideration by the Corporation; provided, however, that no adjustment in the number of shares with respect to which options may be granted under the Plan or in the number of shares subject to outstanding options shall be made except in the event, and then only to the extent, that such adjustment, together with all respective prior adjustments which were not made as a result of this provision, involves a net change of more than ten percent of the following: i. the number of shares of Common Stock with respect to which options may be granted under the Plan, or ii. with respect to each outstanding option, the respective number of shares of Common Stock subject thereto on the date of grant thereof. b. Subject to the required action by the stockholders, if the Corporation shall be a party to a transaction involving a sale of substantially all its assets, a merger, or a consolidation, any option granted hereunder shall pertain to and apply to the securities to which a holder of the number of shares of Common Stock subject to the option would have been entitled if he actually owned the stock subject to the option immediately prior to the time any such transaction became effective; provided, however, that all unexercised options under the Plan may be canceled by the Corporation as of the effective date of any such transaction by giving notice to the holders thereof of its intention to do so, and by permitting the exercise, during the 30-day period immediately preceding the effective date of such transaction, of all partly or wholly unexercised options that the holders thereof have a right to exercise under the provisions the Plan at the time such notice is given. c. In the case of dissolution of the Corporation, every option outstanding hereunder shall terminate; provided, however, that each option holder shall have 30 days' prior written notice of such event, during which time he shall have a right to exercise his partly or wholly unexercised options. d. On the basis of information known to the Corporation, the Board or the Committee shall make all determinations under this Section 7, including whether a transaction involves a sale of substantially all the Corporation's assets; and all such determinations shall be conclusive and binding. - 6 - 7 8. Option Agreements. Each Participant shall agree to such terms and conditions in connection with the exercise of an option, including restrictions on the deposition of the Common Stock acquired upon the exercise thereof, as the Committee may deem appropriate. Option agreements need not be identical. The certificates evidencing the shares of Common Stock acquired upon exercise of an option may bear a legend referring to the terms and conditions contained in the respective option agreement and the Plan, and the Corporation may place a stop transfer order with its transfer agent against the transfer of such shares. If requested to do so by the Committee at the time of exercise of an option, each Participant shall execute a certificate indicating that he is purchasing the Common Stock under such option for investment and not with any present intention to sell the same. 9. Legal and Other Requirements. The obligation of the Corporation to sell and deliver Common Stock under options granted under the Plan shall be subject to all applicable laws, regulations, rules and approvals, including, but not by way of limitation, the effectiveness of a registration statement under the Securities Act of 1933, if deemed necessary or appropriate by the Board, of the Common Stock reserved for issuance upon exercise of options. A participant shall have no rights as a stockholder with respect to any shares covered by an option, or exercised by him, until the date of delivery of a stock certificate to him for such shares. No adjustment other than pursuant to Section 7 hereof shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is delivered. 10. Non-transferability. During the lifetime of an optionee, any option granted to him shall be exercisable only by him or by his guardian or legal representative. No option shall be assignable or transferable, except by will or by the laws of descent and distribution. The granting of an option shall impose no obligation upon the optionee to exercise such option or right. 11. No Contract of Employment. Neither the adoption of this Plan nor the grant of any option shall be deemed to obligate the Corporation or any subsidiary of the Corporation to continue the employment of any employee for any particular period, nor shall the granting of an option constitute a request or consent to postpone the retirement date of any employee. - 7 - 8 12. Indemnification of Committee. In addition to such other rights of indemnification as they may have as members of the Board or the Committee, the members of the Committee shall be indemnified by the Corporation against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding (or in connection with any appeal therein), to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with any Plan or any option granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Corporation) or paid by them in satisfaction of a judgment in any such action, suit, or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit, or proceeding except in relation to matters as to which it shall be adjudged in such action, suit, or proceeding that such Committee member is liable for gross negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding a Committee member shall in writing offer the Corporation the opportunity, at its own expense, to handle and defend the same. 13. Termination and Amendment of the Plan. The Board, acting by a majority of its members (exclusive of Board members who are eligible to receive options under this Plan) without further action on the part of the stockholders, may from time to time alter, amend, or suspend the Plan or any option granted hereunder or may at any time terminate the Plan; provided, however, that the Board may not: i. change the total number of shares of Common Stock available for options under the Plan (except as provided in Section 7 hereof), ii. extend the duration of the Plan, iii. increase the maximum term of options, iv. decrease the option price or otherwise materially increase the benefits accruing to Participants under the Plan, or v. materially modify the eligibility requirements of the Plan; and provided further that no such action shall materially and adversely affect any outstanding options without the consent of the respective optionees. - 8 - 9 14. Effective Date of Plan. The Plan shall become effective upon adoption by the Board. - 9 - EX-23.1 4 CONSENT OF EXPERT 1 Exhibit 23.1 ------------ Independent Auditors' Consent ----------------------------- The Board of Directors and Stockholders Mercantile Bancorporation Inc.: We consent to the use of our reports incorporated herein by reference in the Form S-8 Registration Statement No. 333-09803. /s/ KPMG Peat Marwick LLP St. Louis, Missouri November 12, 1996 -----END PRIVACY-ENHANCED MESSAGE-----