As filed with the Securities and Exchange Commission on January 20, 1998
Missouri 43-1265338
------------------------ ----------------------------------
(State of incorporation) I.R.S. Employer Identification No.
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement is being filed for the purpose of
registering additional securities of the same class (common stock, par value
$0.50 per share) as other securities for which an earlier registration
statement on Form S-8 relating to the same employee benefit plan is
effective.
Pursuant to General Instruction E to Form S-8, the contents of the
earlier registration statement, File No. 33-91456, are hereby incorporated by
reference.
II-1
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 Bridgeton, State of Missouri, on December 16, 1997.
CASS COMMERCIAL CORPORATION
By: s/LAWRENCE A. COLLETT
----------------------------------------
Lawrence A. Collett
Chairman, President and
Chief Executive Officer
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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.
Each person whose signature appears below constitutes and appoints Lawrence A. Collett and Eric H. Brunngraber, each acting alone, his or her true and lawful attorneys-in-fact and agents, with full powers of substitution and re-substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
December 16, 1997 s/LAWRENCE A. COLLETT Chairman, President and
-------------------------------- Chief Executive Officer
Lawrence A. Collett (principal executive officer)
December 17, 1997 s/JOHN J. VALLINA Director
--------------------------------
John J. Vallina
II-2
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December __, 1997 -------------------------------- Director
Robert J. Bodine
December 17, 1997 s/THOMAS J. FUCOLORO Director
--------------------------------
Thomas J. Fucoloro
December 17, 1997 s/HARRY J. KRIEG Director
--------------------------------
Harry J. Krieg
December __, 1997 -------------------------------- Director
Howard A. Kuehner
December 17, 1997 s/JAKE NANIA Director
--------------------------------
Jake Nania
December __, 1997 -------------------------------- Director
Irving A. Shepard
December __, 1997 -------------------------------- Director
A.J. Signorelli
December 17, 1997 s/BRUCE E. WOODRUFF Director
--------------------------------
Bruce E. Woodruff
December 17, 1997 s/ERIC H. BRUNNGRABER Vice President -
-------------------------------- Chief Financial Officer
Eric H. Brunngraber (principal financial and
accounting officer)
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II-3
INDEX TO EXHIBITS
Exhibit Description
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4.1 Restated Articles of Incorporation of Cass Commercial
Corporation.
4.2 Bylaws of Cass Commercial Corporation.
4.3 Cass Commercial Corporation 1995 Restricted Stock Bonus
Plan, as amended, including form of Option Agreement.
5 Opinion of Armstrong, Teasdale, Schlafly & Davis regarding
legality of shares being registered.
23.1 Consent of Armstrong, Teasdale, Schlafly & Davis
(incorporated in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24 Powers of Attorney (see Signature Page).
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II-4
SECRETARY OF STATE
STATE OF MISSOURI
P.O. BOX 778
JEFFERSON CITY, MISSOURI 65102
Pursuant to the provisions of the General and Business Corporation Law of Missouri, the undersigned Corporation adopts the following Restated Articles of Incorporation:
The name of the Corporation shall be Cass Commercial Corporation.
The registered office of the corporation, until otherwise determined by the Board of Directors, shall be 13011 Hollenberg Drive, Bridgeton, Missouri 63044, and the registered agent at such address shall be Eric H. Brunngraber.
The aggregate number of shares which the Corporation shall have authority to issue is Twenty Two Million (22,000,000) shares, of which Twenty Million (20,000,000) shares shall be Common Stock having a par value of $.50 per share, and Two Million (2,000,000) shares shall be Preferred Stock having a par value of $.50 per share. No shareholder shall be entitled to the preemptive right to acquire additional shares of the Corporation.
The Board of Directors is expressly authorized, prior to issuance, by adopting resolutions providing for the issuance of shares of any particular series of Preferred Stock and, if and to the extent from time to time required by law, by filing certification thereto with the Secretary of State of Missouri, to set or change the number of shares to be included in each series of Preferred Stock and to set or change in any one or more respects the designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications, or terms and conditions of redemption relating to the shares of each such series. The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited to, setting or changing the following:
(a) the distinctive serial designation of such series and the number of shares constituting such series;
(b) the annual dividend rate on shares of such series, whether dividends shall be cumulative and, if so, from which date or dates;
(c) whether the shares of such series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon and after which such shares shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(d) the obligation, if any, of the Corporation to retire shares of such series pursuant to a sinking fund;
(e) whether shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes and, if so, the terms and conditions of such conversion or exchange, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;
(f) whether the shares of such series shall have voting rights, in addition to the voting rights provided by law, and if so, the terms of such voting rights;
(g) the rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution, or winding up of the Corporation; and
(h) any other relative rights, powers, preferences, qualifications, limitations or restrictions thereof relating to such series.
The name and place of residence of the incorporator is: Bruce E. Woodruff, 333 N. Dickson, St. Louis, Missouri 63122.
The property and business of the corporation shall be controlled and managed by a Board of Directors consisting of ten (10) directors. The number of directors to constitute subsequent boards of directors shall be fixed by, or in the manner provided in, the by-laws of the corporation. Any changes in the number of members of the Board of Directors shall be reported to the Missouri Secretary of State within thirty (30) calendar days of such change.
The duration of the Corporation shall be perpetual.
The Corporation is formed for the following purposes:
1. To own stock of and provide management services to banks and other financial institutions and generally to act as a bank holding company; and to engage in such other business as is incidental thereto; and generally to engage in any lawful act or activity for
which corporations may now or hereafter be organized under the General and Business Corporation Law of Missouri.
2. To buy, lease and otherwise acquire lands and interests in lands of every kind and description and wheresoever situated, to buy, lease and otherwise acquire and to construct and erect buildings and structures of all kinds in and on such lands for any use and purposes; to hold, own, improve, develop, maintain, operate, lease, convey, exchange, mortgage, sell or otherwise dispose of such lands or any interests therein.
3. To borrow or raise money for any of the purposes of this corporation and to issue bonds, promissory notes, bills of exchange, debentures and other obligations and evidences of indebtedness, either secured by mortgage, pledge or otherwise, or unsecured, for any money borrowed or in payment of property purchased, leased, or acquired or for other projects; to mortgage or pledge all, or any part of its properties, rights, interests and franchise, including any or all shares of stock, bonds, debentures, notes, scrip, or other obligations or evidences of indebtedness at any time owned by it.
4. To buy, own, hold, sell, assign, transfer, mortgage, pledge, and deal in stocks, bonds, securities and evidences of indebtedness issued or created by any other corporation, association, partnership or individual, and while in control of the same, to exercise all rights, powers and privileges thereunto appertaining.
5. To buy, hold, sell, assign, transfer, mortgage, pledge, and deal in and with its own capital stock, notes, bonds, securities and evidences of indebtedness in such manner and to such extent as may now or hereafter be permitted by law.
6. To enter into, make, perform, and carry out as principal, agent or broker, contracts of every kind for any lawful purpose, with any person, firm, association or corporation, or with any domestic or foreign governmental, municipal or public authority.
7. To purchase and acquire, as a going concern or otherwise, and to carry on, maintain and operate all or any part of the property, or business of any corporation or firm, association, entity, or person whatsoever, deemed to be of benefit to the corporation, or useful in any manner in connection with any of its objects or purposes; to conduct, transact, operate and carry on business incidental or germane to the objects and purposes hereinbefore enumerated.
8. To buy or otherwise acquire and lease to others, vehicles, equipment and personal property of every kind and description.
9. To have and exercise all of the powers now or hereafter conferred by the laws of the State of Missouri upon corporations organized under the laws of the said State, and any and all acts amendatory thereof and supplemental thereto; and to do any and all things necessary and proper in carrying out or accomplishing any and all of the above mentioned purposes or any part thereof, not inconsistent with the Constitution and laws of the State of Missouri, or these Articles of Incorporation.
The by-laws of the corporation may be adopted, amended or repealed only by: (a) the affirmative vote of at least 75% of the outstanding shares of all classes of stock of the corporation entitled to vote thereon, voting as a single class at a meeting duly called and held; or (b) by the affirmative vote of at least 70% of the authorized number of directors at a meeting of the Board of Directors duly called and held.
The corporation shall to the full extent permitted by Section 351.355 of the General and Business Corporation Law of Missouri, as amended from time to time, indemnify all persons whom it shall have power to indemnify under said Section from and against any and all of the expenses, liabilities or other matters referred to in said Section.
The affirmative vote of at least 75% of the outstanding shares of all classes of stock of the corporation entitled to vote thereon, voting as a single class at a meeting duly called and held, shall be required: (a) for the adoption or approval of any agreement for the merger or consolidation of the corporation with or into a related person or an affiliate of a related person, unless pursuant to the terms of the proposed merger or consolidation the persons who hold common shares of the corporation immediately prior to the merger will have the same rights and percentage of ownership and voting power of the surviving or resulting entity as they have in the corporation preceding the merger or consolidation; or (b) to authorize the sale or lease of all or substantially all of the assets of the corporation to a related person or affiliate of a related person; or (c) to authorize the dissolution of the corporation. For purposes of this Article a "related person" in respect of a given transaction shall be any company, person or other entity which by itself or together with its affiliates and associates is the beneficial owner directly or indirectly of more than 5% of any class of equity securities of the corporation as of the record date for the determination of stockholders entitled to vote on such transaction; an "affiliate" of a related person shall be any company, person or other entity which, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with, the related person; an "associate" of a related person shall be any officer or director or any beneficial owner, directly or indirectly, of more than 5% of any class of equity securities of such related person or any of its affiliates; and "equity securities" shall include any stock or similar security, or any security convertible, with or without consideration, into such a security, or carrying any warrant to subscribe to or purchase such a security, or any such warrant or right.
A related person shall be deemed to be the beneficial owner of any equity securities which it or its affiliates or associates has the right to acquire pursuant to any agreement; or which are beneficially owned directly or indirectly (including shares deemed owned through the application of the immediately preceding clause) by any other company, person or entity (or an affiliate or associate of any such company, person or entity) with which it or its affiliates or associates has any agreement, arrangement or understanding for the purposes of acquiring, holding, voting or disposing of any equity securities of the corporation.
A determination of the Board of Directors of the corporation, based on information known to the Board of Directors and made in good faith, shall be conclusive as to whether: (a) a company, person or other entity is a related person, an affiliate or an associate; or (b) a related person or affiliate or associate thereof is the beneficial owner of more than 5% of any class of equity securities of the corporation.
The provisions of this Article and of Article Eight hereof shall be in addition to the requirements of the General and Business Corporation Law of Missouri and shall not be amended or repealed without the affirmative vote of 75% of the outstanding shares of all classes of stock of the corporation entitled to vote thereon, voting as a single class at a meeting duly called and held. The notice of any meeting at which any matter described in this Article or in Article Eight (including the amendment or repeal of either Article) is to be voted on by the stockholders shall include a statement describing the matter to be voted on and setting forth the vote required to approve such matter.
The foregoing Restated Articles of Incorporation were duly adopted at a meeting of the Board of Directors of the Corporation held on December 16, 1997, by the affirmative vote of a majority of the members of the Board of Directors, and correctly set forth without change the corresponding provisions of the Articles of Incorporation as theretofore amended, and supersede the original Articles of Incorporation and all amendments thereto.
CASS COMMERCIAL CORPORATION
(Corporate Seal) By s/Lawrence A. Collett
-----------------------------------------
President
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and Eric H. Brunngraber
----------------------------------------
Secretary
STATE OF MISSOURI )
) ss.
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COUNTY OF ST. LOUIS )
I, Dana L. Stauder, a Notary Public, do hereby certify that on the 17th day of December, 1997, personally appeared before me Lawrence A. Collett who, being by me first duly sworn, declared that he is the President of Cass Commercial Corporation, that he signed the foregoing document as President of the Corporation, and that the statements therein contained are true.
s/Dana L. Stauder ------------------------------------------- DANA L. STAUDER Notary Public - Notary Seal STATE OF MISSOURI ST. CHARLES COUNTY MY COMMISSION EXP. JUNE 3, 2000 |
Offices
The principal office of the corporation shall be located at such place either within or without the State of Missouri as the Board of Directors may from time to time designate. The corporation may have such other offices, either within or without the State of Missouri, as the business of the corporation may require from time to time.
The location of the registered office of the corporation and the name of the corporation's registered agent in the State of Missouri shall be as determined from time to time by the Board of Directors and as filed in the manner provided by law.
Shareholders
seventy days before the date of the meeting, unless, as to a particular matter, other or further notice is required by law, in which case such other or further notice shall be given. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at his address as it appears on the records of the corporation, with postage thereon prepaid.
quorum shall be valid as a corporate act unless a larger vote is required by law.
Shares standing in the name of a deceased person may be voted by his administrator or executor, either in person or by proxy. Shares standing in the name of a guardian, curator, or trustee may be voted by such fiduciary, either in person or by proxy, but no guardian, curator, or trustee shall be entitled, as such fiduciary, to vote shares held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred.
Nothing in this Section 2.13 shall alter the timeliness and other requirements of Rule 14a-8, promulgated by the Securities Exchange Commission, or any successor thereto (to the extent the corporation is subject to such Rule or successor), for inclusion of shareholders' proposals in the corporation's proxy statement with respect to a meeting of shareholders.
Directors
Each director shall be a natural person at least eighteen years old. A director need
not be a shareholder, a citizen of the United States, or a resident of the State of Missouri.
Officers
All officers and other agents of the corporation, as between themselves and the corporation, shall have such authority and perform such duties in the management of the property and affairs of the corporation as may be provided herein, or, in the absence of such provision, as may be determined by resolution of the Board of Directors.
President, and such designation has been filed in writing with the Secretary of State and such notice attested to by the Secretary of the corporation. If the powers of the chief executive officer shall be vested solely in the Chairman of the Board, the President shall be subordinate only to the Chairman of the Board and shall be the chief operating officer of the corporation and shall be in charge of, and exercise general supervisory control over, all operating phases and departments of the corporation.
The President shall preside at all meetings of the shareholders and of the Board of Directors, unless there shall be a Chairman of the Board, in which case the President shall preside in the absence or with the consent of the Chairman of the Board.
The chief executive officer of the corporation may execute, either alone or with any other proper officer thereunto authorized by the Board of Directors, deeds, mortgages, bonds, notes, contracts, or any other instruments for and in the name of the corporation, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these by-laws to some other officer or agent of the corporation or shall be required by law to be otherwise executed. The chief executive officer shall also, unless the Board otherwise provides, be ex officio a member of all standing committees. In general, the chief executive officer shall perform all duties usually vested in the chief executive officer of a corporation and such other duties as may be prescribed from time to time by the Board of Directors.
Contracts, Loans, Checks and Deposits
Certificates for Shares and Their Transfer
Fiscal Year
The first fiscal year of the corporation shall be determined by the filing of the first Federal income tax return of the corporation. Thereafter, each fiscal year shall end on the same date until changed by resolution of the Board of Directors.
Dividends
The Board of Directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its Articles of Incorporation.
Seal
The corporation shall have a corporate seal, which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words "Corporate Seal" and "Missouri".
Indemnification
The corporation shall indemnify its directors, officers and employees to an extent not exceeding that permitted by Section 351.355 of the Revised Statutes of Missouri, as amended, and subject to the terms and provisions of the foregoing statute, which, by reference, is incorporated herein.
The corporation may also in specific cases, in the discretion of the Board of Directors, indemnify agents of the corporation other than directors, officers and employees to an extent not exceeding that permitted by Section 351.355, as amended.
Waiver of Notice
Whenever any notice whatever is required to be given under the provisions of these by-laws or the Articles of Incorporation or any law, a written waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Attendance at any meeting shall constitute a waiver of notice of the meeting except where such attendance is for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened.
Amendments
These by-laws may be amended or repealed as provided in the Articles of Incorporation. No amendment which effects a change of the time or place for the election of directors shall operate to reduce the length of a director's term of office by more than sixty days.
Protection to Public Shareholders in Certain Defined Instances
For purposes of this Article, the term "Related Person" means any individual, corporation, partnership, trust, association or other organization or entity (including any group formed for the purpose of acquiring, voting or holding securities of the corporation) which by itself or together with its affiliates and associates either directly, or indirectly through one or more intermediaries, owns, beneficially or of record, or controls by agreement, voting trust or otherwise, 20% or more of the voting power of the stock of the corporation, and such term also includes any corporation, partnership, trust, association or other organization or entity in which one or more Related Persons have the power, through the ownership of voting securities, by contract, or otherwise, to influence significantly any of the management, activities or policies of such corporation, partnership, trust, association, other organization or entity.
The purpose of this Article is to provide minimum safeguards for the corporation's public shareholders in the event a Related Person wishes to accomplish a merger or consolidation involving the corporation, or the sale of the corporation's assets. The Board of Directors believes that frequently the terms of such a merger, consolidation or purchase do not reflect arms' length bargaining because one dominant influence controls both sides of the negotiations. The fact that the bulk of the remaining shareholders may be solicited by the acquiring Related Person in connection with such a business combination or sale does not assure those shareholders that the terms of such a combination (i.e., what they will receive for their shares of the corporation) will be fair to them, or that they can effectively prevent its accomplishment. The statutory right of the remaining public shareholders of the corporation to dissent and to have their shares "appraised" and to receive the value of their shares in cash is not always adequate because the appraisal standard to be applied under the laws of Missouri (the corporation's state of incorporation) does not take into account the benefit of the proposed merger or consolidation to the surviving combined entity and may not recognize the adverse influence of the acquiring Related Person's substantial stock ownership on the market value of the shares in the hands of the public. Accordingly, it is hereby provided that during the period of time any Related Person is the beneficial owner of 20% or more of the voting shares of the corporation, and there is submitted to the shareholders of the corporation any plan of merger or other business combination or any proposal for the sale of all or substantially all of the assets of the corporation, the following shall occur:
A copy of this Article shall be furnished by the corporation to each shareholder of the corporation at the time such plan or proposal is submitted to the shareholders, and the holders of shares in the corporation who do not vote their shares in favor of such plan or proposal shall be entitled to receive from the corporation cash in such amount as shall equal the "Redemption Price" for their shares. The "Redemption Price" shall be the greater of: (i) the highest price, including any commissions paid to brokers or dealers, at which any voting shares of the corporation held by the Related Person were acquired at any time pursuant to a tender offer or in any market purchase (including privately negotiated transactions) or otherwise within 24 months prior to the date of such transmittal to shareholders of this Article; or (ii) the highest sales price in which any voting shares of the corporation were traded on the market during the 24 months preceding the date of such transmittal of this Article. In no event, however, shall the Redemption Price be less than the shareholders' equity per share as reflected in any report prepared by the corporation as at the end of the corporation's last fiscal quarter preceding the date of such transmittal of this Article to shareholders. The payment of such Redemption Price shall be made in cash on or before the date such merger or other business combination or sale of assets shall be effected.
Notwithstanding the provisions herein above set forth, the corporation shall not redeem any of its own voting shares when the capital of the corporation is impaired or when such redemption would cause any impairment of the capital of the corporation in violation of Missouri law.
Certain Repurchases of Shares of Stock by the Corporation
For purposes of this Article, (i) the term "Controlling Person" means any individual, corporation, partnership, trust, association or other organization or entity (including any group formed for the purpose of acquiring, voting or holding securities of the corporation) which either directly, or indirectly through one or more intermediaries, owns, beneficially or of record, or controls by agreement, voting trust or otherwise, at least 5% of the voting power of the stock of the corporation, and such term also includes any corporation, partnership, trust, association or other organization or entity in which one or more Controlling Persons have the power, through the ownership of voting securities, by contract, or otherwise, to influence significantly any of the management, activities or policies of such corporation, partnership, trust, association, other organization or entity, and (ii) the term "Disinterested Shareholders" means those holders of the stock of the corporation entitled to vote on any matter, none of which is a Controlling Person.
Except as otherwise provided in this Article, no purchase by the corporation from any Controlling Person of any shares of stock of the corporation owned by such Controlling Person shall be made at a price exceeding the average price paid by such Controlling Person for all shares of stock of the corporation acquired by such Controlling Person during the 24 months preceding the date of such proposed purchase unless such purchase is approved by the affirmative vote of not less than a majority of the voting power of the shares of stock of the corporation held by Disinterested Shareholders.
The provisions of this Article shall not apply to (i) any offer to purchase made by the corporation which is made on the same terms and conditions to the holders of all shares of stock of the corporation, (ii) any purchase by the corporation of shares owned by a Controlling Person occurring after the end of 24 months following the date of the Last acquisition by such Controlling Person of stock of the corporation, (iii) any transaction which may be deemed to be a purchase by the corporation of shares of its stock which is made in accordance with the terms of any stock option or other employee benefit plan now or hereafter maintained by the corporation, or (iv) any purchase by the corporation of shares of its stock at prevailing market prices pursuant to a stock repurchase program.
As adopted February 20, 1996.
(iii) During any period of two (2) consecutive years, individuals
who at the beginning of such period constitute the directors of the Company
cease for any reason to constitute at least a majority thereof unless the
election, or the nomination for election by the Company's shareholders, of
each new director of the Company was approved by a vote of at least two-thirds
(2/3) of the directors of the Company then still in office who were directors
of the Company at the beginning of any such period; or
(iv) There shall be consummated any sale, lease, exchange, or
other transfer (in one transaction or a series of related transactions) of
all, or substantially all, of the assets of the Company (on a consolidated
basis) to a party which is not controlled by or under common control with the
Company.
2.6 "Change in Control Period" means the period beginning upon the
first to occur of (i) a Change in Control, or (ii) the approval by the Board
of a Change in Control, or (iii) 10 days before the record date, if any, for
determining the shareholders of the Company eligible to vote on a proposed
Change in Control, or (iv) 10 days before the last date for determining the
shareholders of the Company eligible to participate in any Change in Control
in which the Company's common stock would be sold, exchanged or converted for
or into cash, property or other securities, and ending upon the first to
occur of (A) two (2) years after such Change in Control is effected, or (B)
the date such proposed Change in Control is abandoned by the parties.
2.7 "CIS" means Cass Information Systems, Inc.
2.8 "Common Stock" means the common stock of the Company.
2.9 "Company" means Cass Commercial Corporation.
2.10 "Compensation Committee" means the Compensation Committee of the
Board.
2.11 "Good Reason" means the occurrence of any one or more of the
following during a Change in Control Period, unless expressly consented to by
the Participant:
(i) The assignment of the Participant to duties materially
inconsistent with the Participant's authorities, duties, responsibilities,
and status (including offices, titles, and reporting requirements) as an
employee of the Company, or a reduction or alteration in the nature or status
of the Participant's authorities, or responsibilities from those in effect as
of the beginning of the Change in Control Period;
(ii) Without the Participant's consent, the Company's requiring
the Participant to be based at a location which is at least fifty (50) miles
further from the Participant's primary residence at the time such requirement
is imposed than is such residence from the Company's office at which the
Participant is primarily rendering services at such time, except for required
travel on the Company's business to an extent substantially
of an award of the Bonus Shares and which have a value at least equal to the
par value of the Bonus Shares awarded.
3.2 The Board may from time to time award Bonus Shares to the
Company's chief executive officer upon the recommendation of the Compensation
Committee and pursuant to a determination by the Board as described in the
preceding paragraph.
3.3 The award of Bonus Shares to employees of Cass Bank or CIS shall
also be subject to the adoption of this Plan by the board of directors of
such subsidiary and to the approval of either the board of directors of such
subsidiary or an individual or committee to which approval authority has been
delegated by the subsidiary's board of directors.
5.2 In the event of any stock dividend on, reclassification, split-up
or combination of, or other change in, the Common Stock, then the number or
kind of shares which may be awarded hereunder shall be correspondingly added
to, reclassified, increased, diminished or changed proportionately.
5.3 The Company shall at all times reserve a number of shares of
Common Stock for issuance hereunder equal to the maximum number of Bonus
Shares set forth above less the number of Bonus Shares previously awarded and
then outstanding, which reserved shares may consist of previously-unissued
shares or treasury shares or any combination thereof.
* * * * *
Attachment: Exhibit A -- Restriction Agreement Form
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- 5 -
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Exhibit A
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THIS RESTRICTION AGREEMENT is entered into as of _____________, 19__, between Cass Commercial Corporation, a Missouri corporation (the "Company"), and
____________________________ (the "Participant").
WHEREAS, the Company has deemed it to be in its best interests to promote the loyalty and facilitate the retention of its employees and the employees of its subsidiaries in the service of the Company and its subsidiaries, by offering such employees an increased incentive to continue in the service of the Company and its subsidiaries and increase their efforts for its welfare, and
WHEREAS, in furtherance of the above purposes the Participant's employer has adopted the Company's 1995 Restricted Stock Bonus Plan, and has determined to award to the Participant shares of common stock of the Company 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:
Total Number of Bonus Shares: ________
________________ as to _____ Bonus Shares;
________________ as to _____ Bonus Shares; and
________________ as to _____ Bonus Shares.
(a) Forfeiture upon Termination of Employment. If the Participant
shall for any reason, whether voluntary or involuntary, cease to be
continuously employed by the Company or any of its subsidiaries, then without
notice or further consideration to the Participant, all Bonus Shares subject
to the Restrictions shall automatically be forfeited and shall revert to the
Company. Such forfeiture shall not occur if the termination of employment is
the same event which terminates the Restriction Period as set forth in
Section 3. 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 Optionee's employer to continue the Optionee's
employment for any period of time after the date hereof.
(b) Non-Transferability of Bonus Shares. Bonus Shares subject to the Restrictions may not be assigned, transferred, pledged or hypothecated in any way, other than by will or by operation of law, nor shall they be subject to execution, attachment or similar process. Notwithstanding the foregoing, however, with prior notice to the Company and subject to such requirements as the Company may reasonably impose, including without limitation the execution of new instruments of transfer pursuant to Section 5 and a counterpart of this Restriction Agreement, the Bonus Shares may be transferred, subject to all applicable Restrictions, between the Participant in his or her personal capacity and the Participant as trustee of a trust (A) of which the Participant 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 Participant.
(c) Restrictive Legend. Certificates for Bonus Shares subject to the Restrictions shall bear a restrictive legend substantially as follows:
"The securities represented by this certificate are subject to certain restrictions on transfer and to possible forfeiture pursuant to a Restriction Agreement between Cass Commercial Corporation and the named stockholder, a copy of which is on file and available for inspection during normal business hours at the Corporation's principal office."
Upon termination of the Restrictions, the Participant shall be entitled to have a new certificate issued without the restrictive legend.
(a) Deposit of Bonus Shares into Escrow. In order to assure compliance with the Restrictions, certificates representing the Bonus Shares shall be deposited, together with stock powers or other instruments of transfer appropriately endorsed in blank by the Participant, with the Secretary of the Company or other officer (other than the Participant) designated by the chief executive officer of the Company, as escrow agent, to be held by the escrow agent pursuant to the provisions of this Section 5.
(b) Delivery of Bonus Shares to Company upon Forfeiture. In the event of forfeiture of any Bonus Shares pursuant to paragraph 4(a) above, the escrow agent shall deliver the certificates for the Bonus Shares, together with any dividends or other securities held with respect to the Bonus Shares and related instruments of transfer, to the chief executive officer of the Company (or in the case of Bonus Shares forfeited by the chief executive officer, as directed by the Board), free from the escrow.
(c) Release of Bonus Shares to the Participant. Upon termination or expiration of the Restrictions with respect to any Bonus Shares, the escrow agent shall deliver the certificates for such Bonus Shares, together with any dividends or other securities held with respect to such Bonus Shares and related instruments of transfer, to the Participant, free from the escrow; provided that if fewer than all the Bonus Shares are being released from the escrow, the remaining Bonus Shares shall remain subject to the escrow.
(d) Dividends Payable on Bonus Shares; Adjustments to Common Stock. In the event that while Bonus Shares are subject to the Restrictions, any cash or stock dividend is paid on the Bonus Shares, or there shall occur any reclassification, split-up or combination of, or other change in, the Company's common stock, then any cash or securities so issued to the Participant with respect to or on account of such Bonus Shares as a result of any such event shall be subject to the same Restrictions as the Bonus Shares with respect to or on account of which they were issued, and shall be held in escrow and delivered or released at the same times and in the same manner as the Bonus Shares with respect to or upon which such cash or securities were issued.
IN WITNESS WHEREOF, the parties have executed this Restriction Agreement as of the date first above written.
Company: CASS COMMERCIAL CORPORATION
By:__________________________________
Title: ______________________________
Participant: _________________________________________
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January 14, 1998
Board of Directors
Cass Commercial Corporation
13001 Hollenberg Drive
Bridgeton, Missouri 63044
Gentlemen:
In our capacity as counsel for Cass Commercial Corporation, a Missouri corporation (the "Company"), we have examined the Registration Statement on Form S-8 (the "Registration Statement") in form as proposed to be filed by the Company with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, on or about January 15, 1998 relating to up to 50,000 shares of common stock, par value $0.50 per share (the "Company Common Stock"), to be offered by the Company pursuant to the Registration Statement in connection with the Company's 1995 Restricted Stock Bonus Plan (the "Plan"). In this connection, we have examined such records, documents and proceedings as we deem relevant and necessary as a basis for the opinion expressed herein.
Upon the basis of the foregoing, we are of the opinion that the shares of Company Common Stock referred to above have been duly and validly authorized and, when issued pursuant to the provisions of the Plan, will be duly and validly issued, fully paid and non-assessable.
We hereby consent to filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
s/ARMSTRONG, TEASDALE,
SCHLAFLY & DAVIS
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Independent Auditors' Consent
The Board of Directors
Cass Commercial Corporation:
We consent to the incorporation by reference in the registration statement on Form S-8 of Cass Commercial Corporation (Cass) of our report dated January 24, 1997, relating to the consolidated balance sheets of Cass and subsidiaries as of December 31, 1996 and 1995, and the related consolidated statements of income, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1996, which report appears in the December 31, 1996 annual report on Form 10-K of Cass.
s/KPMG PEAT MARWICK LLP
St. Louis, Missouri
January 7, 1998
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