AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 3, 1995
Registration Statement No. 33-_____
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the
SECURITIES ACT OF 1933
_________________________________
MARK TWAIN BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
Missouri 43-0895344
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
8820 Ladue Road
St. Louis, Missouri 63124
(Address of principal executive offices)
__________________________
MARK TWAIN BANCSHARES, INC. 1995 STOCK OPTION PLAN
(Full title of the plan)
__________________________
Carl A. Wattenberg, Jr., Esq. Copies to:
Senior Vice President, General
Counsel and Corporate Secretary John A. Niemoeller, Esq.
Mark Twain Bancshares, Inc. The Stolar Partnership
8820 Ladue Road 911 Washington Avenue, 7th Fl.
St. Louis, Missouri 63124 St. Louis, Missouri 63101
(Name and address of agent for service)
(314) 889-0707
(Telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of each Amount Proposed Proposed Amount of
class of securities to be maximum maximum registra-
to be registered Registered offering aggregate tion fee
price offering
Common Stock, per share price
$1.25 Par Value 900,000
Per Share shares $31.50* $28,350,000* $9,776
*Estimated solely for purposes of calculating the registration
fee. In accordance with Rule 457(h)(1), the proposed offering
price of shares was based on the average of the high and low
prices reported on the NASDAQ System for April 28, 1995.
<PAGE>
PART I
The Section 10(a) prospectus relating to the Plan is omitted from
this Registration Statement pursuant to the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents are incorporated in this
registration statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1994.
(b) The Registrant's Current Reports on Form 8-K dated
April 12, 1995 and April 26, 1995.
(c) The description of the Registrant's shares of common
stock contained in the Registrant's registration statement filed
under the Securities Exchange Act of 1934, file no. 0-4543,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant or the Plan
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, as amended, 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 to be incorporated by reference
herein and to be a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities
The Registrant's common stock is registered under Section 12 of
the Securities Exchange Act of 1934, as amended.
Item 5. Interests of Named Experts and Counsel
Ernst & Young LLP, the Registrant's independent accountants, have
no interest in the Registrant.
Page II-2
<PAGE>
The Stolar Partnership has passed upon the legality of the shares
offered under this registration statement. Attorneys at The
Stolar Partnership who have participated in the preparation of
the Plan and this registration statement collectively own 13,181
shares of the Registrant's common stock.
Item 6. Indemnification of Directors and Officers
Section 351.355 of The General and Business Corporation Law
of Missouri, as currently amended, permits a Missouri corporation
to indemnify any director, officer, employee, or agent against
amounts reasonably paid or incurred by such person in connection
with a proceeding against him relating to his position with such
corporation, 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
proceedings, if he had no reasonable cause to believe his conduct
to be unlawful. However, in a proceeding by or in the right of
the corporation against such person, no indemnification may be
made by the corporation if such person is adjudged liable to the
corporation for negligence or misconduct, except as determined by
an appropriate court. With shareholder approval as specified in
said Section 351.355, a Missouri corporation may give further
indemnity to such person other than for conduct finally adjudged
to have been knowingly fraudulent, deliberately dishonest, or
willful misconduct.
The shareholders of the Registrant approved amendments to the
by-laws relating to indemnification at the 1987 annual meeting.
The amended by-laws expand the level of indemnification of
directors, officers, employees, and agents. Under the amended
provisions, the Registrant will be obligated to indemnify any
person who is or was, or is threatened to be made, a party to any
action by reason of a fact that he is or was a director, officer,
employee, or agent of the Registrant or a subsidiary or, at the
request of the Registrant, is or was serving as a director,
officer, employee, or agent of another entity, against
liabilities incurred thereunder, to the full extent provided by
law. The by-laws authorize the Board of Directors to authorize,
to the extent permitted by Missouri corporation laws, the
purchase of insurance for the benefit of directors, officers,
employees, or agents, insuring against such liability.
Item 7. Exemptions from Registration Claimed
Not Applicable.
Page II-3
<PAGE>
Item 8. Exhibits
Exh.
No. Description
4.1 The Mark Twain Bancshares, Inc. 1995 Stock Option Plan.
5.1 Opinion and consent of The Stolar Partnership, counsel to
the Registrant, concerning the legality of the shares of
common stock being registered hereunder.
23.1 Consent of Independent Accountants.
24.1 Power of Attorney Executed by Certain Officers and
Directors of the Registrant.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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 registration statement is on Form S-3 or Form
S-8, and 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.
Page II-4
<PAGE>
(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 pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
Page II-5
<PAGE>
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 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 Ladue, County of St. Louis, State of
Missouri, on May 3, 1995.
MARK TWAIN BANCSHARES, INC.
By: CARL A. WATTENBERG, JR.
Carl A. Wattenberg, Jr.
(Senior Vice President,
General Counsel, and
Corporate Secretary)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and as of the dates indicated:
Signature Title Date
__________________ ______________________ _______________
JOHN P. DUBINSKY President and Chief May 3, 1995
(John P. Dubinsky) Executive Officer
and Director (Principal
Executive Officer)
KEITH MILLER Senior Vice President, May 3, 1995
(Keith Miller) Finance (Principal
Financial Officer)
KEVIN J. CODY Vice President, Trea- May 3, 1995
(Kevin J. Cody) surer, and Assistant
Secretary (Principal
Accounting Officer)
ALVIN J. SITEMAN Chairman of the May 3, 1995
(Alvin J. Siteman) Board and Director
ROBERT J. BAUDENDISTEL Director May 3, 1995
(Robert J. Baudendistel)
PETER F. BENOIST Director May 3, 1995
(Peter F. Benoist)
Page II-6
<PAGE>
_____________________ Director May 3, 1995
(Robert A. Bernstein)
ROBERT C. BUTLER Director May 3, 1995
(Robert C. Butler)
JACK DEUTSCH Director May 3, 1995
(Jack Deutsch)
HENRY J. GIVENS, JR. Director May 3, 1995
(Henry J. Givens, Jr.)
B.D. HUNTER Director May 3, 1995
(B.D. Hunter)
MICHAEL M. MCCARTHY Director May 3, 1995
(Michael M. McCarthy)
JAMES J. MURPHY, JR. Director May 3, 1995
(James J. Murphy, Jr.)
Page II-7
<PAGE>
EXHIBIT INDEX
Exh.
No. Description
4.1 The Mark Twain Bancshares, Inc. 1995 Stock Option Plan.
5.1 Opinion and consent of The Stolar Partnership, counsel to
the Registrant, concerning the legality of the shares of
common stock being registered hereunder.
23.1 Consent of Independent Accountants.
24.1 Power of Attorney Executed by Certain Officers and
Directors of the Registrant.
All Exhibits are filed electronically with Form S-8.
Page II-8
Exhibit 4.1
MARK TWAIN BANCSHARES, INC.
1995 STOCK OPTION PLAN
Section 1. Establishment and Purpose.
Mark Twain Bancshares, Inc. (the "Company") hereby
establishes a stock option plan to be named the Mark Twain
Bancshares, Inc. 1995 Stock Option Plan (the "Plan"), for
Eligible Employees of the Company and its Subsidiaries. The
purpose of the Plan is (1) to induce Eligible Employees of the
Company and its Subsidiaries who are in a position to contribute
materially to the prosperity thereof to remain with the Company
or its Subsidiaries, to offer them incentives and rewards in
recognition of their contributions to the Company's progress, and
to encourage them to continue to promote the best interests of
the Company and its Subsidiaries, and (2) to aid the Company and
its Subsidiaries in competing with other enterprises for the
services of new officers and other managerial or supervisory
personnel needed to help insure the Company's continued progress.
Section 2. Definitions.
(a) "Acceleration Event" has the meaning given in Section
8(c).
(b) "Agreement" has the meaning given in Section 7.
(c) "Board of Directors" means the Board of Directors of
the Company.
(d) "Code" means the Internal Revenue Code as in effect
from time to time. When a specific Section of the Code is
referred to in the Plan or an Agreement, the reference shall mean
such Section and any successor provision from time to time unless
the reference specifically excludes successor provisions.
(e) "Committee" means the Stock Option Committee referred
to in Section 3 hereof.
(f) "Company" means Mark Twain Bancshares, Inc., a Missouri
corporation.
(g) "Disability" means the condition of being disabled
within the meaning of Section 422(c)(6) of the Code.
(h) "Eligible Employee" has the meaning given in Section 5.
(i) "Employer" means the Company or that Subsidiary which
employs an Optionee.
(j) "Fair Market Value" for all purposes hereof, shall be
the mean between the high and low selling prices of the Company's
common stock for the appropriate valuation date as reported by
the NASDAQ or other applicable reporting system. If no sales are
reported for the appropriate valuation date, "Fair Market Value"
shall be: (i) if sales are reported within a reasonable period
before and after the appropriate valuation date, the weighted
average of the means between the high and low selling prices on
the nearest date before and nearest date after such valuation
date, with the average to be weighted inversely by the respective
numbers of trading days between the selling dates and such
valuation dates; or (ii) otherwise, the value per share
determined by the Committee in a manner consistent with the
Treasury Regulations under Section 2031 of the Code.
(k) "ISO" or "Incentive Stock Option" means an option
granted under the Plan to purchase Stock which is designated by
the Committee as an Incentive Stock Option and which qualifies as
an "incentive stock option" under Section 422 of the Code.
(l) "NQSO" or "Non-Qualified Stock Option" means an option
granted under the Plan to purchase Stock which is designated by
the Committee as a "Non-Qualified Stock Option" or which is
designated by the Committee as an ISO but which fails or ceases
to qualify as an "incentive stock option" under the Code.
(m) "Option" means an ISO or NQSO.
(n) "Optionee" means the person to whom an Option is
granted.
(o) "Plan" means the Mark Twain Bancshares, Inc. 1995 Stock
Option Plan.
(p) "Reporting Person" means an Optionee who is required to
file statements relating to his or her beneficial ownership of
Stock with the Securities and Exchange Commission pursuant to
Section 16(a) of the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder.
However, a person shall not be deemed to be a "Reporting Person"
on any given date unless an ordinary purchase or sale of Stock
occurring on such date would be required to be reported to such
Commission.
(q) "Rule 16b-3" means Rule 16b-3 (as amended from time to
time) promulgated by the Securities and Exchange Commission under
the Securities Exchange Act of 1934, and any successor thereto.
(r) "Stock" means authorized and unissued shares of common
stock of the Company, par value $1.25 per share, or reacquired
shares of the Company's common stock held in its Treasury.
(s) "Subsidiary" means a "subsidiary corporation" of the
Company as defined in Section 424 of the Code.
(t) "Ten Per Cent Shareholder" means any individual who at
the time an Option is granted owns directly or indirectly capital
stock of the Company possessing more than 10% of the total
combined voting power of all classes of capital stock of the
Company or any Subsidiary, taking into account the provisions of
Section 424(d) of the Code.
(u) "Withholding Taxes" means, in connection with an
Option, (i) the total amount of federal and state income taxes,
social security taxes and other taxes which the Employer of the
Optionee is required to withhold ("Required Withholding Taxes")
plus (ii) any other income taxes which the Employer withholds at
the request of the Optionee.
Section 3. Administration.
The Plan shall be administered by a Stock Option Committee
consisting of three or more persons, each of whom at all times
shall be a member of the Board of Directors, a "disinterested
person" as defined in Rule 16b-3 from time to time and an
"outside director" as defined for purposes of Section 162(m) of
the Code from time to time. Committee members shall not be
eligible for selection to receive Options under the Plan. The
Board of Directors shall appoint the members of the Committee and
may fill vacancies thereon, however caused. The Committee shall
select one of its members as Chairman and shall hold its meetings
at such times and places as it may determine. A majority of the
members of the Committee shall constitute a quorum and the acts
of a majority of the members present at any meeting at which a
quorum is present, or acts approved in writing by a majority of
the members of the Committee, shall be deemed the
2
acts of the Committee. The Company shall grant Options under the
Plan in accordance with determinations made by the Committee
pursuant to the provisions of the Plan. The Committee may from
time to time adopt (and thereafter may from time to time amend or
rescind) such administrative rules and regulations for carrying
out the Plan, and the Committee may take such action in the
administration of the Plan, not inconsistent with the provisions
hereof, as it shall deem proper. The interpretation and
construction of any provisions of the Plan or the Agreements by
the Committee shall, unless otherwise determined by the Board of
Directors, be final and conclusive.
Section 4. Total Number of Shares of Stock Subject to the Plan.
The maximum number of shares of Stock which may be issued
pursuant to Options granted hereunder (subject to adjustment as
provided in Section 13 hereof) shall be 900,000 shares, and said
number of shares of Stock (subject to adjustment as aforesaid)
shall be reserved for issuance upon the exercise of Options
granted under the Plan. The Company may in its discretion use
reacquired shares held in the Company's treasury in lieu of
authorized but unissued shares. The number of shares which are
optioned shall be charged against such maximum number (as
adjusted). If an Option shall terminate for any reason without
having been exercised in full, the unpurchased shares previously
subject to such Option shall, unless the period during which
Options under the Plan may be granted has expired, again be
available for the purposes of the Plan and such terminated Option
or any portion thereof shall not be taken into account in
computing the total number of shares previously optioned.
Section 5. Eligibility.
The class of employees eligible to receive Options under the
Plan ("Eligible Employees") shall be officers and key employees
of the Company or of any Subsidiary (not including directors of
the Company or of any Subsidiary who are not otherwise officers
or employees of the Company or of any Subsidiary). The decision
of the Committee regarding which employees are eligible from time
to time shall be conclusive.
Section 6. Granting of Options.
(a) The Committee shall, in its discretion, determine the
Eligible Employees to be granted Options, the time or times at
which Options shall be granted, the number of shares subject to
each Option, whether the Option is an ISO or an NQSO, and whether
the option price shall be payable (i) only with cash or (ii)
either with cash or with Stock, or with a combination of cash and
Stock. In making such determinations, the Committee may take
into consideration the value of the services rendered by the
respective individuals, their present and potential contributions
to the success of the Company or any Subsidiary, and other
factors which the Committee may deem relevant in accomplishing
the purposes of the Plan. Options granted under the Plan shall
not be affected by any change of duties or position of the
Optionee so long as the Optionee continues to be an employee of
the Company or any Subsidiary. An individual may be granted more
than one Option.
(b) In the event the Company or a Subsidiary enters into a
transaction described in Section 424(a) of the Code with any
other corporation, the Committee may grant Options to employees
or former employees of such corporation in substitution of stock
options previously granted to them by such corporation upon such
terms and conditions as shall be necessary to qualify such grant
as a substitution described in Section 424(a) of the Code.
3
(c) Notwithstanding any other provisions of this Plan, the
maximum number of Options that may be granted to any Eligible
Employee under the Plan during any calendar year shall be 60,000,
subject to adjustment as provided in Section 13.
(d) All action taken by the Committee under the Plan prior
to its adoption by the full Board of Directors and/or its
approval by the shareholders is ratified and confirmed. Such
action includes, without limitation, grants of certain NQSOs on
January 16, 1995, as well as the adoption of administrative rules
relating to the payment of Withholding Taxes with Stock.
Section 7. Terms of Options.
The Committee, in its sole discretion, shall determine on
and after what date or dates Options granted hereunder shall be
exercisable and whether any particular Option shall be
exercisable in one or more installments, specifying the
installment dates and the number of shares exercisable on and
after each such date, and, within the limits herein provided,
shall determine the total period during which such Option is
exercisable. The Committee, in its sole discretion but within
the limits of the Plan, shall determine when and for how long
Options shall be exercisable after death, Disability, or other
termination of employment. Further, the Committee may include
such other provisions as the Committee may deem (a) acceptable or
desirable to the Committee and not inconsistent with the Plan or
(b) necessary to qualify its grants of ISOs under the provisions
of Section 422 of the Code.
Each Option granted under the Plan shall be evidenced by an
Incentive Stock Option Agreement or a Non-Qualified Stock Option
Agreement (an "Agreement") in such form, not inconsistent with
the Plan, as the Committee shall determine, and shall include the
substance of the following terms and conditions:
(a) The Agreement shall state that the Option is an
Incentive Stock Option or a Non-Qualified Stock Option, as
applicable.
(b) The option price for each share of Stock covered by
such Option shall be an amount not less than 100% of the Fair
Market Value of the Stock on the date the Option is granted, or
such higher price as may be required under the Code at the time
of grant in the case of an ISO granted to a Ten Per Cent
Shareholder.
(c) The Option by its terms shall not be transferable by
the Optionee otherwise than by will or by the laws of descent and
distribution and shall be exercisable, during his or her
lifetime, only by the Optionee.
(d) The Option by its terms shall not be exercisable after
the expiration of five years from the date such Option is
granted.
(e) Each Agreement shall recite or incorporate by reference
the substance of Sections 10 and 11 below.
Section 8. Acceleration.
(a) All Options automatically shall become immediately
exercisable in full upon a termination of employment caused by
the Optionee's death or Disability.
(b) The Committee may accelerate the date on which any
Option shall become exercisable at any time after grant and for
any reason the Committee deems appropriate.
(c) Upon the occurrence of any Acceleration Event, each
Option outstanding under this Plan automatically shall become
immediately exercisable in full. For the purposes of this Plan,
4
an "Acceleration Event" is any of the following events: (i) any
Person (as defined below) becomes the beneficial owner (directly
or indirectly, within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Act") of more
than 50% of the Company's then outstanding voting securities;
(ii) the shareholders of the Company approve a definitive
agreement to merge or consolidate the Company with any other
corporation or entity, other than an agreement providing for (x)
a merger or consolidation in which the beneficial owners of the
Company's voting securities outstanding immediately before the
merger or consolidation continue to beneficially own, in
substantially the same proportions and with substantially the
same rights relative to each other, at least 50% of the Company's
or surviving entity's voting securities outstanding immediately
after such merger or consolidation, or (y) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person acquires more
than 50% of the combined voting power of the Company's then
outstanding securities; (iii) a change occurs in the composition
of the Board of Directors of the Company during any period of
twenty-four consecutive months such that individuals who at the
beginning of such period were members of the Board of Directors
("Old Directors") cease for any reason to constitute at least a
majority thereof, provided that each new director whose election,
or nomination for election by the Company's shareholders, was
approved by a vote of at least two-thirds of the Old Directors
then still in office shall be deemed to be an Old Director; or
(iv) the shareholders of the Company approve a plan of sale or
disposition by the Company of all or substantially all the
Company's assets. For purposes of this paragraph, "Person" shall
have the meaning given in Section 3(a)(9) of the Act, as modified
and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include (aa) the Company or any of its Subsidiaries,
(bb) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Subsidiaries,
(cc) an underwriter temporarily holding securities pursuant to an
offering of such securities, or (dd) a corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the
Company's voting securities. The percentage of voting securities
beneficially owned by any Person or other entity or group shall
be measured on the basis of the total voting power of all such
securities which would be entitled to vote at a meeting of
shareholders held at the time in question.
Section 9. Exercise of Options.
(a) An Option shall be exercisable only (i) upon payment to
the Company on the date of exercise of the Option of cash in the
full amount of the option price of the shares with respect to
which the Option is exercised or (ii), if the Agreement relating
to the Option being exercised so permits, upon delivery to the
Company on the date of exercise of the Option of certificates,
duly endorsed for transfer or accompanied by a stock power,
representing shares of Stock owned by the Optionee, having a Fair
Market Value on the date of such exercise and delivery equal to
the full amount of the purchase price of the shares with respect
to which the Option is exercised, or (iii) a combination of (i)
and (ii). In addition, the Committee may permit any Option to be
exercised using shares of Stock which normally would be
deliverable to the Optionee in connection with the exercise; no
Option may be so exercised unless expressly permitted by the
Committee in the Agreement or otherwise in writing.
(b) If requested by an Optionee, the Company may make a
loan or loans to such Optionee of all or part of the option
price, provided that such loan will be made only (i) in
accordance with the provisions of the Company's Officer Loan
Program and (ii) if, and to the extent, the loan can be made in
accordance with all applicable rules and regulations of the
Federal Reserve Board and other regulatory agencies having
jurisdiction over the subject matter.
5
(c) An Optionee shall have none of the rights of a
shareholder with respect to shares of Stock subject to his or her
Option until shares of Stock are issued to him or her upon the
exercise of his or her Option.
(d) When the Optionee's Employer becomes required to
collect Required Withholding Taxes, the Optionee shall promptly
pay to the Company or Employer (as required by the Committee) the
amount of such Required Withholding Taxes in cash, unless the
Agreement or the Committee permits or requires payment in another
form. In the discretion of the Committee or its delegate and at
the Optionee's request, the Committee or its delegate may cause
the Company or Employer to pay Withholding Taxes in excess of
Required Withholding Taxes on behalf of an Optionee, which shall
be reimbursed by the Optionee. The Committee may allow an
Optionee to reimburse the Company or Employer for payment of
Withholding Taxes with shares of Stock, including Stock otherwise
issuable upon exercise of the Option. The Committee may require
the satisfaction of any rules or conditions in connection with
any non-cash payment of Withholding Taxes. If the Optionee is a
Reporting Person at the time of grant or during the Option's term
and is given an election to pay any Withholding Taxes with Stock,
the Committee shall have sole discretion to approve or disapprove
such election at any time after the election is made. If the
Committee permits Withholding Taxes to be paid with Stock, the
Committee shall adopt such rules as it deems appropriate to
qualify Withholding Tax elections by Reporting Persons for
exemption in whole or part from liability under Section 16(b) of
the Securities Exchange Act of 1934, as amended.
(e) If provided in the Agreement relating to an ISO, the
Committee may prohibit the transfer by an Optionee of shares of
Stock issued to him or her upon exercise of an ISO into the name
of a nominee, and the Committee may require the placement of a
legend on certificates for such shares reflecting such
prohibition or adopt other appropriate enforcement procedures.
Section 10. Forfeitures.
(a) If any Optionee to whom an Option is granted
voluntarily terminates employment within two years of the grant
of such Option, or is dismissed from employment at any time for
any reason, such Option shall immediately terminate and be
forfeited to the extent not previously exercised. For this
purpose, terminations due to death, Disability, and other
circumstances which may be designated by the Committee from time
to time, shall be regarded neither as voluntary terminations nor
as dismissals.
(b) Notwithstanding any other provision in this Plan except
paragraph (c) below, the receipt or exercise of any Option, and
the receipt of any share of Stock or other benefit in connection
with or derived from any Option, shall be subject to the
following provisions:
(i) At all times during his or her employment with his
or her Employer, each Optionee shall continuously satisfy his or
her duties of loyalty and faithful service to the Company and
Employer and shall refrain from engaging in any undisclosed
conflict of interest or from otherwise acting in any manner
inimical to or contrary to the best interests of the Company or
Employer. Any violation of law or of any Company or Employer
policy or any business practices or ethics manual or code of the
Company or Employer shall be considered conduct inimical to or
contrary to the best interests of the Company and Employer for
the purposes of this Section. The exercise of any Option, or the
acceptance of any share of Stock or other benefit hereunder in
connection with any Option, shall be deemed to be the
certification by the Optionee that he or she has satisfied this
condition. In addition, each Optionee shall furnish to the
Committee on
6
request any other information concerning satisfaction of such
condition which the Committee may request.
(ii) This Section 10(b) is intended to establish, as a
condition to the realization of economic benefits from all
Options and the Plan, a standard of conduct consistent with (A)
the duties of loyalty and faithful performance of services
imposed on an employee, officer, and/or director (as the case may
be) by the common law, and (B) the Company's and Employer's
published standards and policies which each Optionee is bound to
observe. This Section shall in no way impair or derogate from
the rights or remedies which the Company or Employer may have at
law or in equity or under any employment contract or agreement
with an Optionee to prevent or to recover damages (including
exemplary damages) for the disclosure of trade secrets or
confidential or proprietary information, or to receive any
restitution or recover any damages (including exemplary damages)
properly owing the Company or Employer because of any theft,
fraud, embezzlement, other illegal conduct, breach of duty, or
other misconduct on the part of an Optionee.
(iii) If the Committee determines that an Optionee has
not observed the standard of conduct required by this Section
10(b), the Committee may cause the Optionee to forfeit any right
to or in all or any part of his or her Options which either were
outstanding on the date of the first act of misconduct which gave
rise to such determination or were granted thereafter, and may
require repayment of any Stock or other benefit received in
connection with or derived from such Options by the Optionee
after such first act of misconduct. For the purposes of this
Section 10(b), "other benefit" shall include (without limitation)
any cash or other proceeds from the sale or disposition of Stock
received upon exercise of any Option, and any cash, Stock, or
other dividends received in connection with such Stock. If the
Company or Employer brings suit to enforce its rights hereunder,
each Optionee shall agree to pay any costs (including court costs
and attorneys' fees) incurred in connection therewith.
(iv) This Section 10(b) shall not be interpreted as
requiring the Committee to take action in each and every instance
of suspected misconduct, and in determining to attempt to enforce
the forfeiture and repayment provisions of this Section, the
Committee may consider, among other things, the nature of the
misconduct, its relationship to the Optionee's employment with
the Employer, its seriousness, the impact on the Company, the
possible economic effects, the circumstances surrounding any
discontinuance of the Optionee's employment with the Employer,
and the amount of proof which the Employer may have of any
alleged misconduct. Any decision by the Committee to forego
enforcement of this Section in whole or in part in any particular
instance shall in no way constitute a waiver of the right to
enforce this Section in any other instance.
(v) During the period of any investigation into
whether an Optionee has engaged in conduct prohibited by this
Section 10(b), the Optionee's rights to receive delivery of any
Stock or other benefits, or to have any restrictive legends
removed from Stock certificates, or to have any transfer of Stock
recognized on the stock books of the Company, shall be suspended.
No Optionee shall be prohibited by this paragraph (v) from
exercising his or her Options, subject to the previous sentence.
7
(c) The provisions of this Section 10 shall terminate upon
the occurrence of an Acceleration Event.
Section 11. Competing with the Company.
(a) For the purposes of this Section 11, an Optionee shall
"compete with the Company" if (i) while the Optionee is employed by
the Company or any Subsidiary and for three years thereafter, the
Optionee accepts employment with, or serves as an agent,
employee, or director of or a consultant to, a competitor of the
Company or any Subsidiary, or (ii) during such time the Optionee
acquires or has an interest (direct or indirect) in any firm,
corporation or enterprise engaged in a business which is in
competition with the Company or any Subsidiary, or (iii) at any
time, either during employment or thereafter, the Optionee
divulges any information concerning the Company or any Subsidiary
which is or could be of aid to any such competitor. The mere
ownership of a less than a 1% debt and/or equity interest in a
competing company whose stock is publicly held shall not be
considered as having the prohibited interest in a competitor, and
neither shall the mere ownership of a less than a 5% debt and/or
equity interest in a competing company whose stock is not
publicly held. For purposes of this Plan, any commercial bank,
savings and loan association, securities broker or dealer, or
other business or financial institution that offers any major
service at the time offered by the Company or any of its
Subsidiaries, and which conducts business in any location
encompassed within the areas circumscribed by circles, of which
the radii are 25 miles and the mid-points are the main front
doors of each place of business of the Company and each of its
Subsidiaries, shall be deemed to be a competitor.
(b) If an Optionee competes with the Company, the Optionee
shall have failed to satisfy a condition subsequent to the grant
or exercise of each Option granted to the Optionee. Accordingly,
in such instance, the Optionee shall forfeit each of his or her
Options which were outstanding on the date such competition began
or were granted thereafter, along with all Stock and other
benefits (as defined in Section 10(b)(iii)) received in
connection therewith or derived therefrom.
(c) In consideration of receiving each Option and the
benefits thereof, each Optionee shall be required in his or her
Agreement to covenant and agree not to compete with the Company.
If an Optionee violates the foregoing covenant and agreement, the
Optionee shall have breached his or her Agreement. Accordingly,
in such instance, the Optionee shall be liable to the Company and
its subsidiaries for any actual damages caused by such breach,
including the actual costs of investigating such breach and
enforcing the Company's or any Subsidiary's rights hereunder
(including court costs and attorneys' fees). Each Optionee shall
be required to acknowledge that monetary damages may be
inadequate to fully compensate the Company for the consequences
of any violation of the foregoing covenant and agreement; the
Company shall have the right to obtain injunctive and other
appropriate equitable relief in addition to obtaining actual
damages as aforesaid.
(d) The provisions of this Section 11 shall terminate upon
the occurrence of an Acceleration Event.
Section 12. General Provisions.
(a) The Company shall not be required to issue or deliver
any certificates for shares of Stock to an Optionee upon the
exercise of his or her Option prior to:
8
(i) if requested by the Company, the filing with the
Company by the person exercising an Option of a representation in
writing that at the time of such exercise it is his or her then
present intention to acquire the shares of Stock being purchased
for investment and not for resale, and/or the completion of any
registration or other qualification of such shares of Stock under
any state or Federal laws or rulings or regulations of any
government regulatory body, which the Company shall determine to
be necessary or advisable, and
(ii) the listing, or approval for listing upon notice
of issuance, of such shares of Stock on such securities exchange
or national market system as may at the time be the principal
market for the Stock, and
(iii) the obtaining of any other consent, approval or
permit from any state or federal governmental agency which the
Committee shall, in its absolute discretion upon the advice of
counsel, determine to be necessary or advisable.
(b) It is intended that all ISOs at the time of grant will
meet the requirements for "incentive stock options" within the
meaning of Section 422 of the Code. The Plan shall in all
respects be so interpreted and construed as to be consistent with
this intention. This Section shall not prohibit the
disqualification of an ISO after its grant; however, the
Committee may disqualify an outstanding ISO only with the consent
of the affected Optionee.
(c) The Committee shall not act with respect to any
Reporting Person in a manner which would contravene any
requirement of Rule 16b-3 as in effect at the time of such
action, except with the informed consent of such Reporting
Person. Likewise, no Reporting Person shall act with respect to
any Option in a manner which would contravene any requirement of
Rule 16b-3 as in effect at such time, unless such Reporting
Person acknowledges to the Company that he or she understands the
consequences of such action and the Company (in its sole
discretion) consents to such action.
Section 13. Change in Stock, Adjustments, Etc.
In the event any stock dividend is declared upon the Stock
or in the event outstanding shares of Stock shall be changed into
or exchanged for a different number, class or kind of shares of
Stock or other securities of the Company or of another
corporation, whether by reason of a split or combination of
shares, recapitalization, reclassification, reorganization,
merger, consolidation, or otherwise, the number of shares of
Stock which may be optioned under the Plan and the maximum number
of shares which may be granted to any Eligible Employee during
any calendar year shall be appropriately and proportionately
adjusted and in any such event a corresponding adjustment shall
be made changing the number, class or kind of shares of Stock or
other securities which are deliverable upon the exercise of any
Option previously granted without change in the total price
applicable to the unexercised portion of such Option, but with a
corresponding adjustment in the price for each share of Stock or
other securities covered by the unexercised portion of such
Option. In the event the Company is merged, consolidated or
reorganized with another corporation, appropriate provision shall
be made for the continuance of outstanding option rights and to
prevent their dilution or enlargement compared to the total
shares issuable therein in respect of the Stock. Adjustments
under this Section 13 shall be made in an equitable manner by the
Committee, whose determination shall be conclusive and binding on
all concerned.
9
Section 14. Duration, Amendment and Termination.
The Board of Directors may at any time terminate the Plan or
make such amendments thereof as it shall deem advisable and in
the best interests of the Company, without further action on the
part of the shareholders of the Company; provided, however, that
no such termination or amendment shall, without the consent of
the Optionee, adversely affect or impair the rights of such
Optionee, and provided further, that, unless the shareholders of
the Company shall have approved thereof, no amendment of this
Plan shall be made whereby (a) the total number of shares of
Stock which may be optioned under the Plan or the maximum number
of shares which may be granted to any Eligible Employee during
any calendar year shall be increased, except by operation of the
adjustment provisions of Section 13 hereof, or (b) the class of
Eligible Employees shall be changed. The Committee may amend the
Plan from time to time to the extent necessary (x) to comply with
Rule 16b-3 and (y) to prevent benefits under the Plan from
constituting "applicable employee remuneration" within the
meaning of Section 162(m) of the Code.
The period during which Options may be granted under the
Plan shall terminate on January 15, 2005 unless the Plan shall
have been terminated previously as provided above.
Section 15. Shareholder Approval.
No Option granted under the Plan may be exercised in whole
or in part unless and until adoption of the Plan is approved by
the Company's shareholders within twelve months of its adoption
by the Board of Directors. Such shareholder approval shall
consist of the affirmative vote of a majority of the outstanding
shares of the Company present (in person or by proxy) at a
meeting of the shareholders duly called for the purpose of voting
thereon at which a quorum is present, unless a greater vote is
required by the Company's Articles of Incorporation or By-Laws,
or by applicable law.
Section 16. Date of Granting of Options.
Nothing contained in the Plan or in any resolution adopted
or to be adopted by the Board of Directors or the shareholders of
the Company shall constitute the granting of any Option
hereunder. The date of grant of an Option pursuant to the Plan
shall be the date of grant thereof by action of the Committee.
Promptly after the grant of the Option, the Company shall mail or
deliver to the Optionee an Agreement, duly executed by and on
behalf of the Company, with the request that the Optionee execute
the Agreement within thirty days after the date of mailing or
delivery. If the Optionee shall fail to execute the Agreement
within said thirty-day period, his or her Option shall be
automatically terminated unless the Committee determines
otherwise in its sole discretion.
Section 17. Severability.
In case any provision of this Plan shall be held by any
court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and
this Plan shall be construed as if such invalid, illegal or
unenforceable provision had not been contained herein, so long as
the remaining provisions shall be sufficient, as determined by
such court, to carry out the overall intent of the Company and
its Board of Directors as expressed herein.
10
Exhibit 5.1
May 3, 1995
Mark Twain Bancshares, Inc.
8820 Ladue Road
St. Louis, Missouri 63124
Re: Registration Statement on Form S-8 Relating to 900,000
Shares of Common Stock to be issued pursuant to the
Mark Twain Bancshares, Inc. 1995 Stock Option Plan
Ladies and Gentlemen:
Mark Twain Bancshares, Inc. (the "Company") proposes to file
with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, a Registration Statement on Form S-8
relating to 900,000 shares of common stock, par value $1.25 per
share (the "Shares"), which are proposed to be sold to certain
officers and employees of the Company pursuant to the Mark Twain
Bancshares, Inc. 1995 Stock Option Plan (the "Plan"). The
Shares, in addition to the shares previously authorized and
registered on Form S-8 in connection with the Company's 1983
Incentive Stock Option Plan (Reg. No. 2-86364) and 1992 Stock
Option Plan (Reg. No. 33-48078), will be offered pursuant to a
common Section 10(a) Prospectus to be used in connection with
said three Registration Statements.
In connection with the proposed registration, we have
examined corporate records of the Company and such other
documents and materials as we have considered relevant to the
matters set forth below, and we have made such investigation of
matters of law and fact as we have considered appropriate. Based
on the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Missouri, and has the authority to issue the Shares pursuant to
the Plan.
2. The Shares, when issued or sold pursuant to the
provisions, terms, and conditions of the Plan, will be legally
issued, fully paid, and non-assessable shares of common stock of
the Company.
We consent to the filing of this opinion as an exhibit to
the aforesaid proposed Registration Statement, and we consent to
the use of our name in such Registration Statement.
Very truly yours,
THE STOLAR PARTNERSHIP
By: JOHN A. NIEMOELLER
John A. Niemoeller
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm in Item 5, Interests of
Named Experts and Counsel, in the proposed Registration Statement
(Form S-8) pertaining 900,000 shares of common stock issuable under
the Mark Twain Bancshares, Inc. 1995 Stock Option Plan and to the
incorporation by reference therein of our report dated January
17, 1995 with respect to the consolidated financial statements of
Mark Twain Bancshares, Inc. incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1994,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Ernst & Young LLP
St. Louis, Missouri
May 3, 1995
Exhibit 24.1
MARK TWAIN BANCSHARES, INC.
POWER OF ATTORNEY
Each of the undersigned directors and officers of Mark Twain
Bancshares, Inc., a Missouri corporation (the "Company"), hereby
appoints John P. Dubinsky, Keith Miller, and Carl A. Wattenberg,
Jr., and each of them acting singly, the true and lawful agents
and attorneys of the undersigned, with full power of
substitution, to do all things and to execute all instruments
which any of them may deem necessary or advisable to enable the
Company to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, in connection with the
registration under said Act of: (a) the shares of common stock
remaining unissued under the Company's 1983 Incentive Stock
Option Plan, previously registered pursuant to Registration
Statement No. 2-86364 on Form S-8; (b) the shares of common stock
remaining unissued under the Company's 1992 Stock Option Plan,
previously registered pursuant to Registration Statement No.
33-48078 on Form S-8; and (c) the 900,000 shares of common stock
authorized to be issued under the Company's 1995 Stock Option
Plan pursuant to a proposed new Registration Statement on Form
S-8. This authorization includes the authority to sign the name
of each of the undersigned in the capacities indicated below to
the said proposed new Registration Statement to be filed with the
Securities and Exchange Commission in respect of said 900,000
shares, and to any amendments to any of said three Registration
Statements after this date.
IN WITNESS WHEREOF, each of the undersigned has executed a
copy of this Power of Attorney as of April 26, 1995.
ALVIN J. SITEMAN
Alvin J. Siteman
Chairman of the Board and Director
JOHN P. DUBINSKY
John P. Dubinsky
President, Chief Executive Officer and Director
(Principal Executive Officer)
KEITH MILLER
Keith Miller
Senior Vice President - Finance
(Principal Financial Officer)
KEVIN J. CODY
Kevin J. Cody
Vice President, Treasurer, and Assistant Secretary
(Principal Accounting Officer)
ROBERT J. BAUDENDISTEL
Robert J. Baudendistel
Director
PETER F. BENOIST
Peter F. Benoist
Director
_______________________
Robert A. Bernstein
Director
ROBERT C. BUTLER
Robert C. Butler
Director
JACK DEUTSCH
Jack Deutsch
Director
HENRY J. GIVENS, JR.
Henry J. Givens, Jr.
Director
B.D. HUNTER
B.D. Hunter
Director
MICHAEL M. MCCARTHY
Michael M. McCarthy
Director
JAMES J. MURPHY, JR.
James J. Murphy, Jr.
Director
