-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PKKotX8DcCOpsdleI+3MaLuCDvIYTjtY3uPAqjPEopG/oWZ6+PD0+UWE0Ss8VMxS DpX/uzYNpZ6S2JYrKLgpzQ== /in/edgar/work/20000725/0000950124-00-004372/0000950124-00-004372.txt : 20000921 0000950124-00-004372.hdr.sgml : 20000921 ACCESSION NUMBER: 0000950124-00-004372 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000725 EFFECTIVENESS DATE: 20000725 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENTERBANK HOLDINGS INC CENTRAL INDEX KEY: 0001025835 STANDARD INDUSTRIAL CLASSIFICATION: [6022 ] IRS NUMBER: 431706259 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42204 FILM NUMBER: 678649 BUSINESS ADDRESS: STREET 1: 150 NORTH MERAMEC STREET 2: P O BOX 16020 CITY: CLAYTON STATE: MO ZIP: 63105 BUSINESS PHONE: 3147255500 MAIL ADDRESS: STREET 1: 150 NORTH MERAMEC STREET 2: P O BOX 16020 CITY: CLAYTON STATE: MO ZIP: 63105 S-8 1 s-8.txt FORM S-8 1 As filed with the Securities and Exchange Commission on July 25, 2000 Registration No. 333- --------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ENTERBANK HOLDINGS, INC. ------------------------ (Exact name of registrant as specified in its charter) DELAWARE 43-1706259 -------- ---------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 150 NORTH MERAMEC CLAYTON, MISSOURI 63105 (314) 725-5500 -------------- (Address, Including Zip Code and Telephone Number, of Principal Executive Offices) COMMERCIAL GUARANTY BANCSHARES, INC. EMPLOYEE INCENTIVE STOCK OPTION PLAN COMMERCIAL GUARANTY BANCSHARES, INC. NON-EMPLOYEE ORGANIZER AND DIRECTOR INCENTIVE STOCK OPTION PLAN ------------------------------------------------------------------------- (Full title of the plans) Copy To: JAMES C. WAGNER DAVID W. BRASWELL ENTERBANK HOLDINGS, INC. ARMSTRONG TEASDALE LLP 150 NORTH MERAMEC ONE METROPOLITAN SQUARE, SUITE 2600 CLAYTON, MISSOURI 63105 ST. LOUIS, MISSOURI 63102-2740 (314) 725-5500 (314) 621-5070 -------------- (Name, Address, and Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE - -------------------------------------------- -------------------- --------------------- ---------------------- ----------------- Proposed Proposed maximum Amount of Title of securities to be registered Amount of shares maximum offering aggregate offering registration to be registered price per share price fee (2) - -------------------------------------------- -------------------- --------------------- ---------------------- ----------------- Common Stock, par value $.01 per share 45,003 shares (1) $ 7.78 $ 350,123 $ 92.43 Common Stock, par value $.01 per share 57,861 shares (1) $ 9.72 $ 562,409 $ 148.48 Common Stock, par value $.01 per share 68,577 shares (1) $ 11.67 $ 800,294 $ 211.28 Common Stock, par value $.01 per share 44,684 shares (1) $ 9.72 $ 434,328 $ 114.66 Common Stock, par value $.01 per share 38,580 shares (1) $11.67 $ 450,229 $ 118.86 ---------- --------- --------- TOTAL: 254,705 shares $ 2,597,383 $ 685.71
(1) Shares are issuable upon exercise of options under the Commercial Guaranty Bancshares, Inc. Non-Employee Organizer and Director Incentive Stock Option Plan for the benefit of non-employee organizers and directors of Commercial Guaranty Bancshares, Inc. and the 2 Commercial Guaranty Bancshares, Inc. Employee Incentive Stock Option Plan for the benefit of the employees of First Commercial Bank, N.A. and The Capital Corporation, subsidiaries of Commercial Guaranty Bancshares, Inc. (2) Calculated in accordance with Rule 457(h). 3 INTRODUCTION This Registration Statement on Form S-8 relates to the conversion of Commercial Guaranty Bancshares, Inc. stock options into options to purchase Enterbank Holdings, Inc. common stock, par value $.01 per share ("Enterbank Common Stock"). On June 23, 2000, a subsidiary of Enterbank Holdings, Inc., a Delaware corporation ("Enterbank"), and Commercial Guaranty Bancshares, Inc., a Kansas corporation ("CGB"), merged in accordance with the Agreement and Plan of Merger (the "Merger Agreement"), dated January 5, 2000, as amended, by and between Enterbank and CGB. Pursuant to the terms of the Merger Agreement, a subsidiary of Enterbank, Enterbank Acquisition Corp. I, merged with and into CGB (the "Merger"). As a result of the Merger, CGB became a subsidiary of Enterbank. Each option granted by CGB to purchase shares of CGB common stock (each, a "CGB Option") which was outstanding and unexercised immediately prior to the Merger, ceased to represent a right to acquire shares of CGB common stock and was converted automatically into an option to purchase shares of Enterbank Common Stock in an amount and at an exercise price determined as follows: (a) the number of shares of Enterbank Common Stock to be subject to the new option shall be equal to the product of the number of shares of CGB common stock subject to the original option, as adjusted for stock dividends and stock splits, and the exchange ratio of 2.1429; and (b) the exercise price per share of Enterbank Common Stock under the new option shall be equal to the exercise price per share of CGB common stock under the original option divided by the exchange ratio of 2.1429. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION. Information required by Item 1 of Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended ("1933 Act"), and the Note to Part I of Form S-8. ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Information required by Item 2 of Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the 1933 Act and the Note to Part I of Form S-8. I-1 4 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which previously have been filed by the Registrant with the Securities and Exchange Commission ("Commission"), are incorporated herein by reference and made a part hereof: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"); (b) Joint Proxy Statement/Prospectus included in Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on April 27, 2000 (File No. 333-35744). (c) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Form 10-K. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities offered hereunder then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. The authorized capital stock of the Registrant consists of 20,000,000 shares of common stock, par value $.01 per share ("Common Stock"), of which approximately 8,968,100 shares were outstanding as of July 17, 2000. Holders of shares of Common Stock are entitled to receive dividends as may from time to time be declared by the Board of Directors of the Registrant out of funds legally available therefore. Holders of Common Stock are entitled to one vote per share on all matters on which the holders of Common Stock are entitled to vote and may cumulate their votes in any election of II-1 5 directors. Holders of Common Stock have no preemptive, conversion, redemption or sinking fund rights. In the event of a liquidation, dissolution or winding up of the Registrant, holders of Common Stock are entitled to share ratably in the assets of the Registrant, if any, remaining after payment of all debts and liabilities of the Registrant. The shares of Common Stock offered by the Registrant hereby will be fully paid and non-assessable when issued. The common stock of Enterbank is not listed or traded on an exchange or in any established public trading market. Enterbank is aware of periodic trading activity in its stock which is reported to the Nasdaq, though there may be transactions from time to time at prices that are not known to Enterbank. Because Enterbank does not expect to list its common stock on any exchange or seek quotation of its common stock on the Nasdaq in the near future, no established public trading market for the Enterbank common stock is expected to develop for the foreseeable future. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's By-Laws provide that each person who was or is made a party to, or is involved in, any action, suit, or proceeding by reason of the fact that such person is or was a director or officer of the Registrant will be indemnified and held harmless by the Registrant to the full extent authorized by the Delaware General Corporation Law. Section 145 of the Delaware General Corporation Law provides as follows: "INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE "(a) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in II-2 6 or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that such person's conduct was unlawful. "(b) A corporation may indemnify any person who was or is party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. "(c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. "(d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because such person has met the applicable standard of conduct set forth in subsections (a) and (b). Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. "(e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. II-3 7 "(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any by law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. "(g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. "(h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. "(i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. "(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of a person. "(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or II-4 8 otherwise the Court of Chancery may summarily determine a corporation's obligation to advance expenses (including attorneys' fees)." Pursuant to the Registrant's Certificate of Incorporation, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director. The Certificate of Incorporation further provides, however, that a director shall be liable to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) pursuant to Section 174 of the Delaware General Corporation Law; or (iv) for any transaction from which such director derived an improper personal benefit. No amendment or repeal of this provision in the Certificate of Incorporation may adversely affect any right or protection of any director of the Registrant existing at the time of such amendment or repeal for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. The Registrant may purchase and maintain, and currently does so maintain, insurance on behalf of its officers and directors against liability asserted against any of them and incurred by them in such capacity, or arising out of their status as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit No. Description ----------- ----------- 4.1 Certificate of Incorporation of Enterbank Holdings, Inc. (incorporated herein by reference from Exhibit 3.1 to the Form S-1 dated December 19, 1996 (File No. 333-14737)). 4.2 Amendment to the Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 dated July 1, 1999 (File No. 333-82082)). 4.3 Amendment to the Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 of the Registrant's Quarterly Report on Form 10-Q for the period ended September 30, 1999). 4.4 Bylaws of the Registrant, as amended (incorporated herein by reference to Exhibit 3.4 of the Registrant's Annual Report on Form 10-K for the period ended December 31, 1999).
II-5 9 4.5 Amendment to the Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.5 of the Registrant's Annual Report on Form 10-K for the period ended December 31, 1999). *5. Opinion of Armstrong Teasdale LLP as to the legality of the securities being registered. 10.1 Agreement and Plan of Merger dated as of January 5, 2000, between Registrant and CGB (incorporated herein by reference to the Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on April 27, 2000 (File No. 333-35744)). 10.2 Amendment to Agreement and Plan of Merger dated as of March 14, 2000, between Registrant and CGB (incorporated herein by reference to the Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on April 27, 2000 (File No. 333-35744)). *10.3 Commercial Guaranty Bancshares, Inc. Employee Incentive Stock Option Plan. *10.4 Commercial Guaranty Bancshares, Inc. Non-Employee Organizer and Director Stock Option Plan. *23.1 Consent of Armstrong Teasdale LLP (included in Exhibit 5 hereto). *23.2 Consent of KPMG LLP. *24 Power of Attorney (included on page II-9 hereof). *Filed herewith.
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: II-6 10 (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"); (ii) to reflect in the prospectus any facts or event arising after the effective date of this 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 this registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if this registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission (the "Commission") pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in this registration statement. 2. That, for the purpose of determining any liability under the 1933 Act, 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 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 1933 Act 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 Commission such indemnification is against public policy as expressed in the 1933 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 II-7 11 precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-8 12 SIGNATURES - EXHIBIT 24 THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Clayton, State of Missouri, on July 19, 2000. ENTERBANK HOLDINGS, INC. ENTERBANK HOLDINGS, INC. By: /s/ James C. Wagner By: /s/ Fred H. Eller ------------------------- -------------------------------- James C. Wagner Fred H. Eller Chief Financial Officer Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of Enterbank Holdings, Inc., hereby severally constitute and appoint Fred H. Eller and James C. Wagner and each of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for each of us in our name, place, and stead, in any and all capacities, to sign Enterbank Holdings, Inc.'s Registration Statement on Form S-8, and any other Registration Statement relating to the same offering, and any and all amendments thereto (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grant to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as each of us might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or his or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated and on the dates indicated.
SIGNATURES TITLE DATE - ---------- ----- ---- /s/ Fred H. Eller President, Chief Executive Officer July 19, 2000 - ------------------ and Director Fred H. Eller /s/ Ronald E. Henges Chairman of the Board July 19, 2000 - --------------------- of Directors Ronald E. Henges
II-9 13
SIGNATURES TITLE DATE - ---------- ----- ---- /s/ Kevin C. Eichner Director July 19, 2000 - --------------------- Kevin C. Eichner /s/ Randall D. Humphreys Director July 19, 2000 - ------------------------- Randall D. Humphreys /s/ Paul R. Cahn Director July 19, 2000 - ------------------ Paul R. Cahn /s/ William B. Moskoff Director July 19, 2000 - ------------------------ William B. Moskoff /s/ Birch M. Mullins Director July 19, 2000 - --------------------- Birch M. Mullins /s/ Robert E/ Saur Director July 19, 2000 - -------------------- Robert E. Saur /s/ Paul L. Vogel Director July 19, 2000 - ------------------- Paul L. Vogel /s/ James A. Williams Director July 19, 2000 - ----------------------- James A. Williams /s/ Henry D. Warshaw Director July 19, 2000 - --------------------- Henry D. Warshaw /s/ James L. Wilhite Director July 19, 2000 - --------------------- James L. Wilhite - -------------------------- Director July 19, 2000 Ted C. Wetterau
II-10 14 /s/ Michael J. DeCoursey Director July 19, 2000 - -------------------------- Michael J. DeCoursey /s/ Richard S. Masinton Director July 19, 2000 - ------------------------ Richard S. Masinton /s/ Ted A. Murray Director July 19, 2000 - ------------------ Ted A. Murray /s/ Robert Ames Director July 19, 2000 - ---------------------- Robert Ames
II-11 15 EXHIBIT INDEX -------------
Exhibit No. Description ----------- ----------- 4.1 Certificate of Incorporation of Enterbank Holdings, Inc. (incorporated herein by reference from Exhibit 3.1 to the Form S-1 dated December 19, 1996 (File No. 333-14737)). 4.2 Amendment to the Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 dated July 1, 1999 (File No. 333-82082)). 4.3 Amendment to the Certificate of Incorporation of the Registrant (incorporated herein by reference to Exhibit 3.1 of the Registrant's Quarterly Report on Form 10-Q for the period ended September 30, 1999). 4.4 Bylaws of the Registrant, as amended (incorporated herein by reference to Exhibit 3.4 of the Registrant's Annual Report on Form 10-K for the period ended December 31, 1999). 4.5 Amendment to the Bylaws of the Registrant (incorporated herein by reference to Exhibit 3.5 of the Registrant's Annual Report on Form 10-K for the period ended December 31, 1999). *5. Opinion of Armstrong Teasdale LLP as to the legality of the securities being registered. 10.1 Agreement and Plan of Merger dated as of January 5, 2000, between Registrant and CGB (incorporated herein by reference to the Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on April 27, 2000 (File No. 333-35744)). 10.2 Amendment to Agreement and Plan of Merger dated as of March 14, 2000, between Registrant and CGB (incorporated herein by reference to the Registrant's Registration Statement on Form S-4 filed with the Securities and Exchange Commission on April 27, 2000 (File No. 333-35744)).
II-12 16 *10.3 Commercial Guaranty Bancshares, Inc. Employee Incentive Stock Option Plan. *10.4 Commercial Guaranty Bancshares, Inc. Non-Employee Organizer and Director Stock Option Plan. *23.1 Consent of Armstrong Teasdale LLP (included in Exhibit 5 hereto). *23.2 Consent of KPMG LLP. *24 Power of Attorney (included on page II-9 hereof). *Filed herewith.
II-13 EX-5 2 ex5.txt OPINION OF ARMSTRONG TEASDALE LLP 1 EXHIBIT 5 ARMSTRONG TEASDALE LLP Attorneys at Law - -------------------------------------------------------------------------------- One Metropolitan Square, Suite 2600 St. Louis, Missouri 63102-2740 Phone: (314) 621-5070 Fax: (314) 621-5065 www.armstrongteasdale.com July 20, 2000 Enterbank Holdings, Inc. 150 North Meramec St. Louis, Missouri 63105 RE: REGISTRATION ON FORM S-8 OF 254,705 SHARES OF COMMON STOCK Ladies and Gentlemen: In connection with the registration with the Securities and Exchange Commission of 254,705 shares of common stock, $0.01 par value per share (the "Securities"), of Enterbank Holdings, Inc. (the "Company"), you have requested that we furnish you with our opinion as to the legality of the issuance of the Securities in connection with 83,264 of such Securities to be issued pursuant to the Commercial Guaranty Bancshares, Inc. Employee Incentive Stock Option Plan (the "Employee Plan") and 171,441 of such Securities to be issued pursuant to Commercial Guaranty Bancshares, Inc. Non-Employee Organizer and Director Incentive Stock Option Plan (the "Non-Employee Plan"). As counsel to the Company, we have participated in the preparation of the Registration Statement on Form S-8 under the Securities Act of 1933, as amended (the "Registration Statement") with respect to the Securities. We have examined and are familiar with the Company's Certificate of Incorporation, Bylaws, records of corporate proceedings, the Registration Statement, the Employee Plan, the Non-Employee Plan and such other documents and records as we have deemed necessary for purposes of this opinion. Based on the foregoing, we are of the opinion that the Securities have been duly and validly authorized and will, when issued as contemplated in the Employee Plan and the Non-Employee Plan, as applicable, be legally issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement. Sincerely, ARMSTRONG TEASDALE LLP /s/ ARMSTRONG TEASDALE LLP EX-10.3 3 ex10-3.txt EMPLOYEE INCENTIVE STOCK OPTION PLAN 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 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 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. 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. 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. 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 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. 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 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. 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 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. 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. 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 EX-10.4 4 ex10-4.txt NON-EMPLOYEE ORGANIZER & DIR STOCK OPTION PLAN 1 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 2 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 3 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 4 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. 5 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. 6 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 7 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. 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 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 9 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 10 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 11 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 12 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. 13 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 -------------------------------- --------------------------------- Fred Eller, President Scott Woods, President EX-23.2 5 ex23-2.txt CONSENT OF KPMG LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITOR'S CONSENT The Board of Directors and Stockholders Enterbank Holdings, Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 of Enterbank Holdings, Inc. of our report dated February 18, 2000, with respect to the consolidated balance sheets of Enterbank Holdings, Inc. and subsidiaries as of December 31, 1999 and 1998, and the related consolidated statements of income, shareholders' equity, cash flows, and comprehensive income for each of the years in the three-year period ended December 31, 1999, which report is incorporated by reference in the Form S-8 of Enterbank Holdings, Inc. dated July 20, 2000. KPMG LLP St. Louis, Missouri July 20, 2000 -----END PRIVACY-ENHANCED MESSAGE-----