<PAGE> 1
EXHIBIT 10.3
AMENDED AND RESTATED
COMMERCIAL GUARANTY BANCSHARES, INC.
EMPLOYEE INCENTIVE STOCK OPTION PLAN
THIS AMENDED AND RESTATED COMMERCIAL GUARANTY BANCSHARES, INC. EMPLOYEE
INCENTIVE STOCK OPTION PLAN is entered into and effective as of July 19, 2000.
RECITALS
WHEREAS, Commercial Guaranty Bancshares, Inc. (the "Company") and
Enterbank Holdings, Inc. ("Enterbank") entered into an Agreement and Plan of
Merger dated January 5, 2000, as amended (the "Agreement"), pursuant to which,
among other things, a subsidiary of Enterbank merged with the Company (the
"Merger"), and as a result, the Company became a wholly owned subsidiary of
Enterbank; and
WHEREAS, pursuant to the Agreement, each outstanding and unexercised
option to purchase the Company's Common Stock is to be converted into an option
to purchase Enterbank Common Stock; and
WHEREAS, Enterbank and the Company wish to amend the Company's Employee
Incentive Stock Option Plan (the "Plan") as provided herein.
NOW THEREFORE, in consideration of the mutual covenants and promises
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
PURPOSE
The purpose of this Employee Incentive Stock Option Plan (hereinafter
the "Plan") is to enable the Company and any of the Company's subsidiaries to
attract into and retain in its employ persons of outstanding competence and
motivation. The Plan is intended to provide additional
<PAGE> 2
incentive for unusual industry and efficiency by offering an opportunity for key
employees to acquire a proprietary interest in the Company and, thereby, to
share in its future growth. The Company believes that its goal of attracting and
retaining outstanding individuals may be achieved by granting incentive stock
options to eligible key employees from time to time, with such options meeting
all the requirements of IRC Section 422.
DEFINITIONS
The terms used in this Plan shall have the following meanings:
- "AFFILIATED COMPANIES" means Enterbank Holdings, Inc. and
companies which are members of the Enterbank Holdings, Inc.
affiliated group under IRCss.1504(a).
- "COMPANY" means Commercial Guaranty Bancshares, Inc.
- "COMPENSATION COMMITTEE" means the committee that may be
established by the Board of Directors of Enterbank Holdings,
Inc. to administer, construe and interpret this plan. If at
any time the Board of Directors of Enterbank Holdings, Inc.
has not established a Compensation Committee, all references
herein to the Compensation Committee shall be deemed to mean
the Board of Directors of Enterbank Holdings, Inc.
- "DISABILITY" means the inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than six (6) months, such being
determined independently by a duly licensed physician.
- "EMPLOYEE" means any person, including an officer of the
Company or any of the Company's subsidiaries, who is employed
by the Company or any of the Company's
<PAGE> 3
subsidiaries on a full-time basis, who is compensated for such
employment by a regular salary, and who, in the opinion of the
Board of Directors of the Company (and any of the Company's
subsidiaries, if applicable), is one of the key professional
or executive persons employed by the Company or any of the
Company's subsidiaries, in a position to contribute materially
to its continued growth and development and to the Company's
or any of the Company's subsidiaries future financial success.
The term does not include persons who are retained by the
Company or any of the Company's subsidiaries as independent
contractors or as consultants only.
- "ENTERBANK" means Enterbank Holdings, Inc.
- "FAIR MARKET VALUE" means the fair market value of the Shares
as determined by a third party appraiser selected by the
Compensation Committee.
- "IRC" means the Internal Revenue Code of 1986, as amended.
- "OPTION" means a stock option granted pursuant to the terms of
this Plan.
- "OWNER-EMPLOYEE" means an Employee who owns stock possessing
more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company.
- "PARTICIPANT" means an Employee who has been granted an Option
under the Plan. The term shall also include a former Employee
who had been granted an Option while serving as an Employee of
the Company or any of the Company's subsidiaries, the personal
representative of a deceased Participant, and a transferee
from a deceased Participant who receives an Option in a
transfer by Will or under the laws of descent and distribution
in the manner permitted by this Plan.
<PAGE> 4
- "PLAN" means the Employee Incentive Stock Option Plan adopted
by the Company and set forth herein, and all amendments and
supplements thereto.
- "RETIREMENT" means a severance from the Company's, or any of
the Company's subsidiaries, employment either upon or after
attainment of age sixty-five (65) or after having been
employed by the Company and any of the Company's subsidiaries,
collectively, on a full-time basis for a period of twenty (20)
years.
- "SHARES" means shares of Common Stock of Enterbank Holdings,
Inc.
ADMINISTRATION
No member of the Compensation Committee shall be liable for any act
done or determination made in good faith. The construction and interpretation of
any provision of this Plan by the Compensation Committee shall be final and
conclusive.
ELIGIBILITY
The class of persons eligible to participate in the Plan as recipients
of Options shall include only Employees who hold executive or other major
positions of responsibility in the management of the affairs of the Company or
any of the Company's subsidiaries.
OPTION SHARES
The aggregate number of Shares to be issued under the Options granted
pursuant to this Plan shall not exceed 86,000 Shares of authorized but unissued
common stock (the "Total Option Shares"). Such Shares shall not be subject to
any preemptive rights. Any such Shares which remain unissued at the termination
of this Plan shall cease to be reserved for the purposes of this Plan but, until
termination of the Plan, the Company shall at all times reserve a sufficient
number of Shares to meet the requirements of the Plan.
<PAGE> 5
GRANT OF OPTIONS
The Company, by action of the Compensation Committee, and subject to
the provisions of this Plan, may from time to time grant Options to such
Employees as may be selected by the Board of Directors of the Company. The
Company may also, by action of the Compensation Committee and with the express
approval of the Board of Directors of the Company's subsidiary, and subject to
the provisions of this Plan, from time to time grant Options to such Employees
Company's subsidiary as may be selected by the Board of Directors of the
Company. The number of Shares which may be purchased pursuant to the Options so
granted shall be determined by the Board of Directors of the Company (and
subject to the approval of the subsidiary's Board of Directors if the Options
are being granted to an Employee of that Company subsidiary) and shall be
clearly set forth in the grant of such Options. Each grant of an Option shall be
made in writing and upon such terms and conditions as may be determined by the
Board of Directors (and subject to the approval of the subsidiary's Board of
Directors if the Options are being granted to an Employee of that Company
subsidiary) and Compensation Committee at the time of the grant, subject to the
terms, conditions and limitations set forth in this Plan. Notwithstanding the
foregoing, no Options may be granted under the Plan on or after July 19, 2000.
OPTION PRICE
The Option price for the Shares to be issued under the Plan shall be
determined by the Compensation Committee, but in no event shall such Option
price be less than the Fair Market Value of such Shares at the time the Option
is granted. The method for determining the Fair Market Value of the Shares shall
remain consistent with the provisions of the IRC and the regulations promulgated
thereunder, and such value shall be determined by a third party appraiser
selected by the Compensation Committee.
<PAGE> 6
Notwithstanding the foregoing, if at the time an Option is granted to
an Employee and such Employee is an Owner-Employee (as defined herein), the
Option price at the time the Option is granted to such Employee shall be at
least one hundred ten percent (110%) of the Fair Market Value of the Shares
subject to the Option at such time, and such Option shall not be exercisable
after the expiration of the five (5) year period commencing on the date such
Option is granted.
DURATION OF OPTION
In no event shall any Option granted pursuant to this Plan be
exercisable after the expiration of the ten (10) year period commencing on the
date such Option is granted (the "Option Period"). In addition, upon the
termination of a Participant's employment with the Company or any of the
Company's subsidiaries or any Affiliated Companies for any reason other than the
death, Retirement or Disability of such Participant, any and all Options held by
such Participant at the time of such termination shall lapse immediately upon
such termination. In the event a Participant's employment with the Company or
any of the Company's subsidiaries is terminated due to Retirement, any and all
Options held by such Participant at the time of such termination must be
exercised within three (3) months after such termination (but in no event more
than ten (10) years after the date such Option was granted), and otherwise such
Options shall lapse. In the event a Participant's employment with the Company or
any of the Company's subsidiaries is terminated due to death or a Participant
dies within three (3) months after termination of employment due to Retirement,
any and all Options held by such Participant at the time of his death must be
exercised within one (1) year after his death (but in no event more than ten
(10) years after the date such Option was granted), and otherwise such Options
shall lapse. In the event a Participant's employment with the Company or any of
the Company's subsidiaries is terminated due to Disability, any and all Options
held by such Participant at the time of such termination must be exercised
within one (1) year after any such termination (but
<PAGE> 7
in no event more than ten (10) years after the date such Option was granted),
and otherwise such Option shall lapse. In the event of the death of a
Participant, any and all Options held by such Participant at death may be
exercised by the personal representative of such Participant or by any
transferee permitted to receive such Options under the provisions of this Plan.
EXERCISE OF OPTIONS
An Option shall be exercisable, in whole or in part, only within the
period specified in the grant of the Option, which period shall not extend
beyond the date ten (10) years after the date of the grant. In addition, no
Option granted to a Participant under this Plan shall be exercisable while there
is outstanding (as defined in IRC ss.422A(c)(7)) any other Option which was
granted to such Participant prior to the granting of such Option. A Participant
shall exercise an Option by delivering to the Company written notice which
states such intention and the number of Shares to be acquired thereby and by
making payment for such Shares to the Company at its principal office. Upon the
exercise of an Option by a Participant in compliance with the provisions of this
paragraph, and upon receipt by the Company of payment for the Shares acquired
under such Option, the Company shall deliver or cause to be delivered to such
Participant a certificate or certificates registered in the name of such
Participant for the number of Shares to be issued pursuant to the exercise of
the Option; provided, however, that in no event shall any Shares be issued
pursuant to the exercise of an Option until full payment therefor shall have
been made by cash or certified check, and the Participant shall not exercise any
rights with respect to such Shares until they have been issued. Notwithstanding
the foregoing, in lieu of payment for the Shares by cash or certified check, the
Compensation Committee may, in its absolute discretion, permit payment for the
Shares to be made by any other method it deems acceptable and which still meets
the requirements of IRC Section 422 and is in compliance with Kansas law.
<PAGE> 8
Upon the delivery of a Share certificate pursuant to the exercise of an
Option by a Participant in compliance with the provisions hereof, a notation
shall be made on the back of the grant of Option which was exercised in whole or
in part indicating the number of Shares acquired, the date of acquisition, and
the total purchase price paid. Such notation shall be initialed by the
Participant and by the President of the Company at the closing of such sale.
PARTIAL EXERCISE OF OPTIONS
Except as otherwise specifically provided herein, an Option may be
exercised in part by a Participant only upon the following conditions:
- Only one (1) partial exercise of an Option may be made by each
Participant during any calendar quarter; and
- Each partial exercise of any Option must result in the
acquisition of at least 600 Shares.
RESTRICTION ON DISPOSITION OF SHARES
All options and Shares obtained through any Options shall be subject to
the Stockholders' Agreement and all dispositions of Shares (or Options) shall be
governed by the terms and conditions set forth in the Stockholders' Agreement.
RIGHT TO PURCHASE AFTER CERTAIN TERMINATIONS
In the event a Participant's employment with the Company or any of the
Company's subsidiaries or any Affiliated Companies shall be terminated for any
reason other than death, Disability, or Retirement, the Company shall have the
right to purchase all or any portion of the Shares purchased by such Participant
pursuant to the exercise of an Option. Such right shall be exercised by
delivering written notice of the intention to do so to such Participant within
six (6) months after any such termination. The purchase price to be paid by the
Company for such Shares
<PAGE> 9
shall be the Fair Market Value thereof as of the date of the exercise of the
right provided for herein. The Company shall pay for such Shares in cash or by
certified check within thirty (30) days after the determination of the Fair
Market Value of such Shares, but not until the Participant has delivered to the
Company the Shares properly endorsed and free of any encumbrances.
ADJUSTMENT
In the event Enterbank declares a stock dividend, or in the event of
any reorganization, merger, consolidation, acquisition, separation,
recapitalization, stock-split, combination or exchange of Shares, or like
adjustment, the number of Shares and the class of Shares subject to any Option
granted pursuant to this Plan, and the Option price to be paid therefor, shall
be adjusted by appropriate changes in this Plan and in any Options outstanding
pursuant to this Plan. Any such adjustment to the Plan or to the Options or to
the Option prices shall be made by action of the Compensation Committee and the
determination of the Compensation Committee with respect thereto shall be
conclusive. Notwithstanding the foregoing, no adjustment shall be made to any
Option granted pursuant to this Plan which would cause such Option to cease to
qualify as an Incentive Stock Option within the meaning of IRC Section 422.
All provisions of this Plan, including without limitation all rights
and restrictions concerning sale, transfer or other disposition of Shares shall
apply with equal force and effect to any additional Shares or different class of
shares made subject to any Option granted pursuant to this Plan, as a result of
an adjustment in accordance with the provisions hereof. Such additional Shares
or different class of shares shall be treated in all respects as Shares
originally subject to the provisions of this Plan.
<PAGE> 10
INTENTION TO CONTINUE EMPLOYMENT
Each Participant, as a condition to the granting to him of each Option
hereunder, shall represent to the Company that it is his present intention to
remain in the employ of the Company (or any of the Company's subsidiaries or any
Affiliated Companies), subject to the rights of the Company or any of the
Company's subsidiaries or any Affiliated Companies to terminate the employment
of such Participant at any time, for a period of at least two years after the
date of such grant or until the death, Disability, or Retirement of such
Participant prior to the expiration of such two year period.
LIMITATION OF RIGHTS
No provision in this Plan shall be construed by the Company, any of the
Company's subsidiaries or any Employee in any way to:
- Give any Employee of the Company or any of the Company's
subsidiaries any right to be granted any Options other than
those granted to him in the sole discretion of the Board of
Directors;
- Give a Participant at any time while he is not an actual
shareholder of the Company any rights whatsoever to inspect
the financial statements or books of record of the Company;
- Limit in any way the right of the Company or any of the
Company's subsidiaries to terminate a Participant's employment
with the Company or any of the Company's subsidiaries at any
time;
- Be evidence of any agreement or understanding, express or
implied, that the
<PAGE> 11
Company or any of the Company's subsidiaries will employ a
Participant in any particular position or at any particular
rate of remuneration or for any particular period of time.
AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Company may terminate or amend this Plan
at any time; provided, however, that any such termination or amendment shall not
alter, amend, discontinue, revoke, or otherwise impair any outstanding Options
previously granted pursuant to this Plan which remain unexercised.
REQUIREMENTS OF LAW
If any law, regulation of the Securities and Exchange Commission, or
any regulation of any other commission or agency shall require the Company or a
Participant to take any action with respect to the Shares acquired by the
exercise of an Option, the date upon which the Company shall deliver or cause to
be delivered the certificate or certificates for the Shares so acquired shall be
postponed until full compliance has been made with all such requirements of such
law or regulation. Further, at or before the time of the delivery of the Shares
acquired by the exercise of an Option, each Participant shall deliver to the
Company a written statement that he intends to hold the Shares so acquired for
investment and not with a view to resale or other distribution to the public. In
addition, in the event the Company shall determine that, in compliance with the
Securities Act of 1933 or other applicable statutes or regulations, it is
necessary to register any of the Shares or to qualify any such Shares for an
exemption from any of the requirements of said Act or any other law, the Company
shall take such action at its own expense, and not until such action has been
completed shall such Shares be delivered to the Participant exercising the
Option.
<PAGE> 12
LIQUIDATION AND DISSOLUTION OF COMPANY
In the event of the complete liquidation or dissolution of the Company
other than by merger, any and all Options remaining outstanding and unexercised
shall be deemed canceled without regard to and without limitation by any other
provision of this Plan.
GENERAL PROVISIONS
This Plan constitutes the entire Plan and supersedes any prior
understandings whether written or oral. No modification or claimed waiver of any
of the provisions of this Plan shall be valid unless in writing and signed by
the party against whom such modification or waiver is sought to be enforced.
All notices required or permitted hereunder, unless otherwise
specifically provided, may be given by mailing the same by United States
registered or certified mail, return receipt requested, addressed to the
President of the Company's principal office, and to each Employee and/or
Participant at his latest address as shown on the records of the Company.
Notices may also be given by personal delivery which, in the case of the
Company, shall be to an executive officer of the Company. All notices by the
Company to an Employee shall be deemed to have been given on the date of
delivery to the United States Post Office or on the date of personal delivery,
as the case may be. All notices by an Employee to the Company shall be deemed to
have been given when received by the Company.
The validity, interpretation, performance of, and any dispute connected
with this Plan shall be governed by and construed in accordance with the laws of
the State of Kansas.
As used herein, the masculine gender shall be deemed to include the
feminine.
The titles appearing herein are for convenience only, and shall not be
deemed to define, limit, construe or otherwise affect the other provisions of
this Plan.
<PAGE> 13
EFFECTIVE DATE
This Amended and Restated Plan is effective on the date set forth
below.
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
adopted as of the 19th day of July, 2000.
ENTERBANK HOLDINGS, INC. COMMERCIAL GUARANTY
BANCSHARES, INC.
By: /s/ Fred Eller By: /s/ Scott Woods
------------------- -------------------------------
Fred Eller, President Scott Woods, President
