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EXHIBIT 10.4
AMENDED AND RESTATED
COMMERCIAL GUARANTY BANCSHARES, INC.
NON-EMPLOYEE ORGANIZER AND DIRECTOR
INCENTIVE STOCK OPTION PLAN
THIS AMENDED AND RESTATED COMMERCIAL GUARANTY BANCSHARES, INC.
NON-EMPLOYEE ORGANIZER AND DIRECTOR STOCK OPTION PLAN is entered into and
effective as of July 19, 2000.
RECITALS
WHEREAS, Commercial Guaranty Bancshares, Inc. ("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
Non-Employee Organizer and Director 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 Non-Employee Organizer and Director Incentive Stock
Option Plan (hereinafter the "Plan") is to enable the Company and any of the
Company's subsidiaries to
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attract and retain non-employee organizers and directors of outstanding
competence and motivation. The Plan is intended to provide an additional
incentive for non-employee organizers and directors to originate business for
the Company and work for the general benefit of the Company by offering an
opportunity for non-employee organizers and directors to share in its future
growth. The Company believes that its goal of attracting and retaining
outstanding individuals and encouraging those individuals to originate business
for the Company and work for the general benefit of the Company may be achieved
by granting incentive stock options to non-employee organizers and directors
from time to time.
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 IRC ss.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
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continuous period of not less than (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 subsidiaries on a
full-time basis, who is compensated for such employment by a
regular salary.
- "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.
- "NON-EMPLOYEE DIRECTOR" means an individual who is not an
Employee (as defined above) and who is a member of the
Company's Board of the Directors or any of the Company's
subsidiaries' Board of Directors. 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.
- "NON-EMPLOYEE ORGANIZER" means an individual who is not an
Employee (as defined above) who was an original organizer of
the Company or any of the Company's subsidiaries.
- "OPTION" means a stock option granted pursuant to the terms of
this Plan.
- "OWNER" means anyone who owns stock representing more than ten
percent (10%) of the total combined voting power of all
classes of stock of the Company.
- "PARTICIPANT" means a non-employee organizer or director who
has been granted an Option under the Plan. The term shall also
include non-employee organizers
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and former directors who had been granted an Option while
serving as a non-employee organizer or director 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.
- "PLAN" means the Non-employee Organizer and Director Incentive
Stock Option Plan adopted by the Company as set forth herein,
and all amendments and supplements thereto. Plan does not mean
the Company's Employee Incentive Stock Option Plan or any
other stock plan of the Company or any of the Company's
subsidiaries.
- "RETIREMENT" means a voluntary severance from the Company's or
any of the Company's subsidiaries Board of Directors.
- "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 non-employee organizers or directors of the
Company or any of the Company's subsidiaries.
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OPTION SHARES
The aggregate number of Shares to be issued under the Options granted
pursuant to this Plan shall not exceed 172,000 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.
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
non-employee organizers or directors as may be selected by the Board. 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
non-employee organizers and directors of 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 Option 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 a non-employee organizer or
director of that of the Company's 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 a non-employee organizer or director of that
Company's subsidiary) and Compensation Committee at the time of the grant,
subject to the terms, conditions and limitations set forth in this Plan.
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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.
DURATION OF OPTION
In no event shall any Option granted pursuant to this Plan be
exercisable after the expiration of the five (5) year period commencing on the
date such Option is granted (the "Option Period"). In addition, upon the
termination of a non-employee director's position as a director of the Company
or any of the Company's subsidiaries or any Affiliated Companies for any reason
other than the death or Disability of such Participant, any and all Options held
by such Participant at the time of such termination must be exercised within
ninety (90) days after such termination (but in no event more than five (5)
years after the date such Option was granted), and otherwise such Options shall
lapse. In the event a non-employee director dies while serving as a director or
within ninety (90) days after termination of the non-employee director's
position as a director due to Retirement, or in the event of the death of a
non-employee organizer, 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 five (5) years after the date such Option was granted), and
otherwise such Options shall lapse. In the event of the Disability of a
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non-employee organizer or in the event a non-employee director's position as a
director of 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 in no event more than five (5) years after the date such Option was
granted), and otherwise such Options 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.
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 five (5) years after the date of the grant. 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 is in compliance with Kansas law.
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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 300 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 / TERMINATION OF OPTIONS
The Company's Board shall have the ability, in its sole discretion, to
terminate all non-exercised Options and/or purchase all or any portion of the
Shares purchased by a non-employee organizer or non-employee director pursuant
to the exercise of an Option at any time if the Board reasonably believes that
the non-employee organizer or non-employee director or former director is in any
way negatively affecting the reputation of the Company or any of the Company's
subsidiaries. Prior to the termination and/or purchase, the Company shall send
written notice to
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the non-employee organizer or non-employee director or former director demanding
the non-employee organizer or non-employee director or former director cease
all actions or inactions which the Company's Board reasonably believes is
negatively affecting the reputation of the Company or any of the Company's
subsidiaries. The Company believes that actions which will negatively affect the
reputation of the Company and/or the Company's subsidiaries, include, but are
not limited to, a director or organizer or former director or organizer who
serves as director or advisor to another financial institution or makes a
statement which criticizes the Company, or the Company's management, or a
Company's subsidiary, or the management of a Company's subsidiary. If, after the
written notice, the non-employee organizer or non-employee director or former
director fails to cease all such actions or inactions which the Company's Board
reasonably believes is negatively affecting the reputation of the Company or any
of the Company's subsidiaries, the Company's Board may terminate all
non-exercised Options and/or purchase all or any portion of the Shares purchased
by a non-employee organizer or non-employee director pursuant to the exercise
of an Option. The purchase price to be paid by the Company for such Shares
pursuant to this Paragraph 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
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any Option granted pursuant to this Plan, and the Option price to be paid
thereafter, 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.
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.
LIMITATION OF RIGHTS
No provision in this Plan shall be construed by the Company, any of the
Company's subsidiaries or any non-employee organizer or director in any way to:
- Give any non-employee organizer or director 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 non-employee
director's position as a board
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member of the Company or any of the Company's subsidiaries at
any time;
- Be evidence of any agreement or understanding, express or
implied, that the Company or any of the Company's subsidiaries
will retain a Participant in any particular position or at any
particular rate of remuneration and 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
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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.
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 unexcited
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 non-employee organizer
or director 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 a non-employee organizer or director 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 a non-employee organizer
or director to the Company shall be deemed to have been given when received by
the Company.
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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.
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
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Fred Eller, President Scott Woods, President
