EXHIBIT 10.4
THE SANDWICH CO-OPERATIVE BANK
1994 STOCK OPTION AND INCENTIVE PLAN
1. PURPOSE OF THE PLAN.
The purpose of this The Sandwich Co-operative Bank 1994 Stock Option and
Incentive Plan (the "Plan") is to advance the interests of the Bank through
providing select key Employees of the Bank and its Affiliates with the
opportunity to acquire Shares. By encouraging such stock ownership, the Bank
seeks to attract, retain and motivate the best available personnel for positions
of substantial responsibility and to provide additional incentive to key
Employees of the Bank or any Affiliate to promote the success of the business.
2. DEFINITIONS.
As used herein, the following definitions shall apply.
(a) "Affiliate" shall mean any "parent corporation' or "subsidiary
corporation' of the Bank, as such terms are defined in Section 424(e) and (f),
respectively, of the Code.
(b) "Agreement" shall mean a written agreement entered into in accordance
with Paragraph 5(c).
(c) "Awards" shall mean, collectively, Options and SARS, unless the
context clearly indicates a different meaning.
(d) "Bank" shall mean The Sandwich Co-operative Bank.
(e) "Board' shall mean the Board of Directors of the Bank.
(f) "Change in Control" shall refer to the acquisition of the beneficial
ownership (as that term is defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934) of 25% or more of the
Bank's voting securities by any person or by persons acting as a "group" (within
the meaning of Section 13(d) of the Securities Exchange Act of 1934). For
purposes of this subparagraph only, the term 'person" refers to an individual or
a corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization or any other form of entity not
specifically listed herein. The decision of the Committee as to whether a
change in control has occurred shall be conclusive and binding.
(g) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(h) "Committee" shall mean the Stock Option Committee appointed by the
Board in accordance with Paragraph 5(a) hereof.
(i) "Common Stock" shall mean the common stock, par value $1.00 per share,
of the Bank.
(j) "Continuous Service" shall mean the absence of any interruption or
termination of service as an Employee of the Bank or an Affiliate. Continuous
Service shall not be considered interrupted in the case of sick leave, military
leave or any other leave of absence approved by the Bank or in the case of
transfers between payroll locations of the Bank or between the Bank, an
Affiliate or a successor.
1
(k) "Disinterested Person" shall mean any member of the Board who, at the
time discretion under the Plan is exercised, is a 'disinterested person' within
the meaning of Rule 16b-3.
(1) "Effective Date" shall mean the date specified in Paragraph 14 hereof.
(m) "Employee" shall mean any person employed by the Bank or an Affiliate.
(n) "Exercise Price" shall mean the price per Optioned Share at which an
Option or SAR may be exercised.
(o) "ISO' means an option to purchase Common Stock which meets the
requirements set forth in the Plan, and which is intended to be and is
identified as an "incentive stock option' within the meaning of Section 422 of
the Code.
(p) "Market Value" shall mean the fair market value of the Common Stock,
as determined under Paragraph 7(b) hereof.
(q) "Non-ISO' means an option to purchase Common Stock which meets the
requirements set forth in the Plan but which is not intended to be and is not
identified as an ISO.
(r) "Option" means an ISO and/or a Non-ISO.
(s) "Optioned Shares" shall mean Shares subject to an Option granted
pursuant to this Plan.
(t) 'Participant' shall mean any person who receives an Award pursuant to
the Plan.
(u) "Plan" shall mean The Sandwich Co-operative Bank 1994 Stock Option and
Incentive Plan.
(v) "Rule 16b-3' shall mean Rule 16b-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended.
(w) "Share" shall mean one share of Common Stock,
(x) "SAR" (or 'Stock Appreciation Right") means a right to receive the
appreciation in value, or a portion of the appreciation in value, of a specified
number of shares of Common Stock.
3. TERM OF THE PLAN AND AWARDS.
(a) Term of the Plan. The Plan shall continue in effect for a term of five
years from the Effective Date, unless sooner terminated pursuant to Paragraph 17
hereof. No Award shall be granted under the Plan after ten years from the
Effective Date.
(b) "Term of Awards. 'Me term of each Award granted under the Plan shall
be established by the Committee, but shall not exceed 10 years; provided,
however, that in the case of an Employee who owns Shares representing more than
10% of the outstanding Common Stock at the time an ISO is granted, the term of
such ISO shall not exceed five years.
4. SHARES SUBJECT TO THE PLAN.
2
(a) General Rule. Except as otherwise required by the provisions of
Paragraph I 1 hereof, the aggregate number of Shares deliverable pursuant to
Awards shall not exceed 90,000 Shares. Such Shares may either be authorized but
unissued Shares or Shares held in treasury. If Awards should expire, become
unexercisable or be forfeited for any reason without having been exercised or
become vested in full, the Optioned Shares shall, unless the Plan shall have
been terminated, be available for the grant of additional Awards under the Plan.
(b) Special Rule for SARS. The number of Shares with respect to which an
SAR is granted shall be charged against the aggregate number of Shares remaining
available under the Plan; provided, however, that in the case of an SAR granted
in conjunction with an Option, under circumstances in which the exercise of the
SAR results in termination of the Option and vice versa, only the number of
Shares subject to the Option shall be charged against the aggregate number of
Shares remaining available under the Plan. The Shares involved in an Option as
to which option rights have terminated by reason of the exercise of a related
SAR, as provided in Paragraph 10 hereof, shall not be available for the grant of
further Options under the Plan.
5. ADMINISTRATION OF THE PLAN.
(a) Composition of the Committee. The Plan shall be administered by the
Committee, which shall consist of not less than three (3) members of the Board
who are Disinterested Persons. Members of the Committee shall serve at the
pleasure of the Board. In the absence at any time of a duly appointed
Committee, the Plan shall be administered by those members of the Board who are
Disinterested Persons.
(b) Powers of the Committee. Except as limited by the express provisions
of the Plan or by resolutions adopted by the Board, the Committee shall have
sole and complete authority and discretion (i) to select Participants and grant
Awards, (ii) to determine the form and content of Awards to be issued in the
form of Agreements under the Plan, (iii) to interpret the Plan, (iv) to
prescribe, amend and rescind rules and regulations relating to the Plan, and (v)
to make other determinations necessary or advisable for the administration of
the Plan. The Committee shall have and may exercise such other power and
authority as may be delegated to it by the Board from time to time. A majority
of the entire Committee shall constitute a quorum and the action of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Committee without a meeting, shall be
deemed the action of the Committee.
(c) Agreement. Each Award shall be evidenced by a written agreement
containing such provisions as may be approved by the Committee. Each such
Agreement shall constitute a binding contract between the Bank and the
Participant, and every Participant, upon acceptance of such Agreement, shall be
bound by the terms and restrictions of the Plan and of such Agreement. The
terms of each such Agreement shall be in accordance with the Plan, but each
Agreement may include such additional provisions and restrictions determined by
the Committee, in its discretion, provided that such additional provisions and
restrictions are not inconsistent with the terms of the Plan. In particular,
the Committee shall set forth in each Agreement (i) the Exercise Price of an
Option or SAR, (ii) the number of Shares subject to, and the expiration date of,
the Award, (iii) the manner, time and rate (cumulative or otherwise) of exercise
or vesting of such Award, and (iv) the restrictions, if any, to be placed upon
such Award, or upon Shares which may be issued upon exercise of such Award.
The Chairman of the Committee and such other officers as shall be
designated by the Committee are hereby authorized to execute Agreements on
behalf of the Bank and to cause them to be delivered to the recipients of
Awards.
(d) Effect of the Committee's Decisions. All decisions, determinations and
interpretations of the Committee shall be final and conclusive on all persons
affected thereby.
(e) Indemnification. In addition to such other rights of indemnification
as they may have, the members of the Committee shall be indemnified by the Bank
in connection with any claim, action, suit or proceeding relating to any action
taken or failure to act under or in connection with the Plan or any Award,
granted hereunder to the full extent
3
provided for under the Bank's Charter or Bylaws with respect to the
indemnification of Directors.
6. GRANT OF OPTIONS.
(a) General Rule. In its sole discretion, the Committee may grant Options
to Employees of the Bank or its Affiliates
(b) Special Rules for ISOs. The aggregate Market Value, as of the date the
Option is granted, of the Shares with respect to which ISOs are exercisable for
the first time by an Employee during any calendar year (under all incentive
stock option plans, as defined in Section 422 of the Code, of the Bank or any
present or future Parent or Subsidiary of the Bank) shall not exceed $100,000.
Notwithstanding the prior provisions of this paragraph, the Committee may grant
Options in excess of the foregoing limitations, in which case such Options
granted in excess of such limitation shall be Options which are Non-ISOs.
7. Exercise Price for Options.
(a) Limits on Committee Discretion. The Exercise Price as to any
particular Option granted under the Plan shall not be less than the Market Value
of the Optioned Shares on the date of grant. In the case of an Employee who owns
Shares representing more than 10% of the Bank's outstanding Shares of Common
Stock at the time an ISO is granted, the Exercise Price shall not be less than I
IO % of the Market Value of the Optioned Shares at the time the ISO is granted.
(b) Standards for Determining Exercise Price. If the Common Stock is
listed on a national securities exchange (including the NASDAQ National Market
System) on the date in question, then the Market Value per Share shall be not
less than the average of the highest and lowest selling price on such exchange
on such date, or if there were no sales on such date, then the Exercise Price
shall be not less than the mean between the bid and asked price on such date. If
the Common Stock is traded otherwise than on a national securities exchange on
the date in question, then the Market Value per Share shall be not less than the
mean between the bid and asked price on such date, or, if there is no bid and
asked price on such date, then on the next prior business day on which there was
a bid and asked price. If no such bid and asked price is available, then the
Market Value per Share shall be its fair market value as determined by the
Committee, in its sole and absolute discretion.
8. EXERCISE OF OPTIONS.
(a) Generally. Any Option granted hereunder shall be exercisable at such
times and under such conditions as shall be permissible under the terms of the
Plan and of the Agreement granted to a Participant. An Option may not be
exercised for a fractional Share.
(b) Procedure for Exercise. A Participant may exercise Options, subject to
provisions relative to its termination and limitations on its exercise, only by
(1) written notice of intent to exercise the Option with respect to a specified
number of Shares, and (2) payment to the Bank (contemporaneously with delivery
of such notice) in cash, in Common Stock, or a combination of cash and Common
Stock, of the amount of the Exercise Price for the number of Shares with respect
to which the Option is then being exercised. Each such notice (and payment where
required) shall be delivered, or mailed by prepaid registered or certified mail,
addressed to the Treasurer of the Bank at the Bank's executive offices. Common
Stock utilized in full or partial payment of the Exercise Price for Options
shall be valued at its Market Value at the date of exercise.
(c) Period of Exercisability. Except to the extent otherwise provided in
the terms of an Agreement, an Option may be exercised by a Participant only
while he is an Employee and has maintained Continuous Service from the date of
the grant of the Option, or within three months after termination of such
Continuous Service (but not later than the date on which the Option would
otherwise expire), except if the Employee's Continuous Service terminates by
4
reason of --
(1) "Just Cause" which for purposes hereof shall have the meaning set
forth in any unexpired employment or severance agreement between the
Participant and the Bank (and, in the absence of any such agreement, shall
mean termination because of the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order), then the Participant's
rights to exercise such Option shall expire on the date of such
termination;
(2) death, then to the extent that the Participant would have been
entitled to exercise the Option immediately prior to his death, such Option
of the deceased Participant may be exercised within two years from the date
of his death (but not later than the date on which the Option would
otherwise expire) by the personal representatives of his estate or person
or persons to whom his rights under such Option shall have passed by will
or by laws of descent and distribution;
(3) Permanent and Total Disability (as such term is defined in Section
22(e)(3) of the Code), then to the extent that the Participant would have
been entitled to exercise the Option immediately prior to his Permanent and
Total Disability, such Option may be exercised within one year from the
date of such Permanent and Total Disability, but not later than the date on
which the Option would otherwise expire.
Notwithstanding the provisions of any Option which provides for its exercise in
installments as designated by the Committee, such Option shall become
immediately exercisable upon the Participant's death or Permanent and Total
Disability.
(d) Effect of the Committee's Decisions. The Committee's determination
whether a Participant's Continuous Service has ceased, and the effective date
thereof shall be final and conclusive on all persons affected thereby.
9. SARS (STOCK APPRECIATION RIGHTS)
(a) Granting of SARS. In its sole discretion, the Committee may from time
to time grant SARs to Employees either in conjunction with, or independently of,
any Options granted under the Plan. An SAR granted in conjunction with an
Option may be an alternative right wherein the exercise of the Option terminates
the SAR to the extent of the number of shares purchased upon exercise of the
Option and, correspondingly, the exercise of the SAR terminates the Option to
the extent of the number of Shares with respect to which the SAR is exercised.
Alternatively, an SAR granted in conjunction with an Option may be an additional
right wherein both the SAR and the Option may be exercised. An SAR may not be
granted in conjunction with an ISO under circumstances in which the exercise of
the SAR affects the right to exercise the ISO or vice versa, unless the SAR, by
its terms, meets all of the following requirements:
(1) The SAR will expire no later than the ISO;
(2) The SAR may be for no more than the difference between the Exercise
Price of the ISO and the Market Value of the Shares subject to the ISO at
the time the SAR is exercised;
(3) The SAR is transferable only when the ISO is transferable, and under
the same conditions;
(4) The SAR may be exercised only when the ISO may be exercised; and
(5) The SAR may be exercised only when the Market Value of the Shares
subject to the ISO exceeds the Exercise Price of the ISO.
5
(b) Exercise Price. The Exercise Price as to any particular SAR shall not
be less than the Market Value of the Optioned Shares on the date of grant.
(c) Timing of Exercise. Any election by a Participant to exercise SARs
shall be made during the period beginning on the 3rd business day following the
release for publication of quarterly or annual financial information and ending
on the 12th business day following such date. This condition shall be deemed to
be satisfied when the specified financial data is first made publicly available.
In no event, however, may an SAR be exercised within the six-month period
following the date of its grant.
The provisions of Paragraph 8(c) regarding the period of exercisability of
Options is incorporated by reference herein, and shall determine the period of
exercisability of SARS.
(d) Exercise of SARS. An SAR granted hereunder shall be exercisable at
such times and under such conditions as shall be permissible under the terms of
the Plan and of the Agreement granted to a Participant, provided that an SAR may
not be exercised for a fractional Share. Upon exercise of an SAR, the
Participant shall be entitled to receive, without payment to the Bank except for
applicable withholding taxes, an amount equal to the excess of (or, in the
discretion of the Committee if provided in the Agreement, a portion of) the
excess of the then aggregate Market Value of the number of Optioned Shares with
respect to which the Participant exercises the SAR, over the aggregate Exercise
Price of such number of Optioned Shares. This amount shall be payable by the
Bank in cash.
(e) Procedure for Exercising SARS. To the extent not inconsistent
herewith, the provisions of Paragraph 8(b) as to the procedure for exercising
Options are incorporated by reference, and shall determine the procedure for
exercising SARS.
10. CHANGE IN CONTROL
(a) General Rule. Notwithstanding the provisions of any Award which
provides for its exercise or vesting in installments, upon the date of a Change
in Control or an offer to effect a Change in Control, (i) all Options and SARs
shall become immediately exercisable and fully vested, and (ii) the Participant
shall, at the discretion of the Committee, be entitled to receive cash in an
amount equal to the excess of the Market Value of the Common Stock subject to
such Option over the Exercise Price of such Shares, in exchange for the
cancellation of such Options by the Participant.
(b) Exception to General Rule. Notwithstanding subparagraph (A) of this
Paragraph, in no event may an SAR be exercised, or an Option be canceled in
exchange for cash, within the six-month period following the date of its grant.
11. EFFECT OF CHANGES IN COMMON STOCK SUBJECT TO THE PLAN.
(a) Recapitalizations; Stock Splits, Etc. The number and kind of shares
reserved for issuance under the Plan, and the number and kind of shares subject
to outstanding Awards (and the Exercise Price thereof in the case of Options and
SARS), shall be proportionately adjusted for any increase, decrease, change or
exchange of Shares for a different number or kind of shares or other securities
of the Bank which results from a merger, consolidation, recapitalization,
reorganization, reclassification, stock dividend, split-up, combination of
shares, or similar event in which the number or kind of shares is changed
without the receipt or payment of consideration by the Bank.
6
(b) Transactions in which the Bank is Not the Surviving Entity. Subject to
Paragraph 10 hereof, in the event of (i) the liquidation or dissolution of the
Bank, (ii) a merger or consolidation in which the Bank is not the surviving
entity, or (iii) the sale or disposition of all or substantially all of the
Bank's assets (any of the foregoing to be referred to herein as a
"Transaction"), all outstanding Awards shall be surrendered. With respect to
each Award so surrendered the Committee shall in its sole and absolute
discretion determine whether the holder of the surrendered Award shall
receive --
(1) for each Share then subject to an outstanding Award the number and
kind of shares into which each outstanding Share (other than Shares held by
dissenting stockholders) is changed or exchanged, together with an
appropriate adjustment to the Exercise Price; or
(2) a cash payment (from the Bank or the successor corporation) in an
amount equal to the Market Value of the Shares subject to the Award on the
date of the Transaction, less the Exercise Price of the Award.
(c) Special Rule for ISOS. Any adjustment made pursuant to subparagraphs
(a) or (b)(1) hereof shall be made in such a manner as not to constitute a
modification, within the meaning of Section 424(h) of the Code, of outstanding
ISOs.
(d) Conditions and Restrictions on New, Additional, or Different Shares or
Securities. If, by reason of any adjustment made pursuant to this Paragraph, a
Participant becomes entitled to new, additional, or different shares of stock or
securities, such new, additional, or different shares of stock or securities
shall thereupon be subject to all of the conditions and restrictions which were
applicable to the Shares pursuant to the Award before the adjustment was made.
(e) Other Issuances. Except as expressly provided in this Paragraph, the
issuance by the Bank or an Affiliate of shares of stock of any class, or of
securities convertible into Shares or stock of another class, for cash or
property or for labor or services either upon direct sale or upon the exercise
of rights or warrants to subscribe therefor, shall not affect, and no adjustment
shall be made with respect to, the number, class, or Exercise Price of Shares
then subject to Awards or reserved for issuance under the Plan.
12. NON-TRANSFERABILITY OF AWARDS.
Awards may not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner other than by will or by the laws of descent and
distribution, or pursuant to the terms of a "qualified domestic relations order"
(within the meaning of Section 414(p) of the Code and the regulations and
rulings thereunder).
13. TIME OF GRANTING AWARDS.
The date of grant of an Award shall, for all purposes, be the date on which
the Committee makes the determination of granting such Award. Notice of the
determination shall be given to each Participant to whom an Award is so granted
within a reasonable time after the date of such grant.
14. EFFECTIVE DATE.
The Plan shall become effective immediately upon its approval by the Board.
Awards may be made prior to approval of the Plan by the stockholders of the Bank
if the exercise of Awards in the form of Options and/or SARs is subject to such
stockholder approval.
7
15. APPROVAL BY STOCKHOLDERS.
The Plan shall be approved by stockholders of the Bank within twelve (12)
months before or after the Effective Date.
16. MODIFICATION OF AWARDS.
At any time, and from time to time, the Board may authorize the Committee
to direct execution of an instrument providing for the modification of any
outstanding Award, provided no such modification shall confer on the holder of
said Award any right or benefit which could not be conferred on him by the grant
of a new Award at such time, or impair the Award without the consent of the
holder of the Award.
17. AMENDMENT AND TERMINATION OF THE PLAN.
The Board may from time to time amend the terms of the Plan and, with
respect to any Shares at the time not subject to Awards, suspend or terminate
the Plan, provided that any amendment that is "material" within the meaning of
Rule 16b-3 shall be subject to stockholder approval.
No amendment, suspension or termination of the Plan shall, without the
consent of any affected holders of an Award, alter or impair any rights or
obligations under any Award theretofore granted.
18. CONDITIONS UPON ISSUANCE OF SHARES.
(a) Compliance with Securities Laws. Shares of Common Stock shall not be
issued with respect to any Award unless the issuance and delivery of such Shares
shall comply with all relevant provisions of law, including, without limitation,
the Securities Act of 1933, as amended, the rules and regulations promulgated
thereunder, any applicable state securities law, and the requirements of any
stock exchange upon which the Shares may then be listed. The Plan is intended to
comply with Rule 16b-3, and any provision of the Plan which the Committee
determines in its sole and absolute discretion to be inconsistent with said Rule
shall, to the extent of such inconsistency, be inoperative and null and void,
and shall not affect the validity of the remaining provisions of the Plan.
(b) Special Circumstances. The inability of the Bank to obtain approval
from any regulatory body or authority deemed by the Bank's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall relieve
the Bank of any liability in respect of the non-issuance or sale of such Shares.
As a condition to the exercise of an Option or SAR, the Bank may require the
person exercising the Option or SAR to make such representations and warranties
as may be necessary to assure the availability of an exemption from the
registration requirements of federal or state securities law.
(c) Committee Discretion. The Committee shall have the discretionary
authority to impose in Agreements such restrictions on Shares as it may deem
appropriate or desirable, including but not limited to the authority to impose a
right of first refusal or to establish repurchase rights or both of these
restrictions.
19. RESERVATION OF SHARES.
The Bank, during the term of the Plan, will reserve and keep available A
number of Shares sufficient to satisfy the requirements of the Plan.
8
20. WITHHOLDING TAX.
The Bank's obligation to deliver Shares upon exercise of Awards shall be
subject to the Participant's satisfaction of all applicable federal, state and
local income and employment tax withholding obligations. The Committee, in its
discretion, may permit the Participant to satisfy the obligation, in whole or in
part, by irrevocably electing to have the Bank withhold Shares, or to deliver to
the Bank Shares that he already owns, having a value equal to the amount
required to be withheld. The value of Shares to be withheld, or delivered to
the Bank, shall be based on the Market Value of the Shares on the date the
amount of tax to be withheld is to be determined. As an alternative, the Bank
may retain, or sell without notice, a number of such Shares sufficient to cover
the amount required to be withheld.
21. NO EMPLOYMENT OR OTHER RIGHTS.
In no event shall an Employee's eligibility to participate or participation
in the Plan create or be deemed to create any legal or equitable right of the
Employee, or any other party to continue service with the Bank or any Affiliate.
No Employee shall have a right to be granted an Award or, having received an
Award, the right to again be granted an Award. However, an Employee who has
been granted an Award may, if otherwise eligible, be granted an additional Award
or Awards.
22. GOVERNING LAW.
The Plan shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts, except to the extent that federal law shall
be deemed to apply.
9