As filed with the Securities and Exchange Commission on May 1, 2017
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CENTERSTATE BANKS, INC.
(Exact name of registrant as specified in its charter)
| Florida | 59-3606741 | |
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(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
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| 1101 First Street South, Suite 202, Winter Haven, Florida | 33880 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan, as amended
Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan, as amended
(Full title of the plan)
Jennifer Idell
Executive Vice President and Chief Financial Officer
CenterState Banks, Inc.
1101 First Street South
Winter Haven, Florida 33880
(Name and address of agent for service)
(863) 293-4710
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
(Check One):
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Large accelerated filer |
☐ |
Accelerated filer |
☒ |
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Non-accelerated filer |
☐ (Do not check if a small reporting company) |
Small reporting company |
☐ |
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Emerging growth company |
☐ |
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered |
Amount to be
Registered (1) |
Proposed Maximum
Offering Price Per Share |
Proposed Maximum
Aggregate Offering Price (2) |
Amount of
Registration Fee |
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Common Stock, par value $0.01 per share |
1,150,517 shares | $25.82 | $29,706,349 | $3,443 | ||||
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| (1) |
Plus an indeterminate number of shares which may be required to be issued or may be issued pursuant to the anti-dilution provisions of the stock option plan for stock splits, stock dividends or similar transactions. |
| (2) |
Estimated solely for purposes of calculating the registration fee, pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on the basis of the last sale price of the Common Stock on April 27, 2017. |
EXPLANATORY NOTE
CenterState Banks, Inc. (“CenterState” or “Registrant”), hereby registers 1,150,517 shares of its common stock, par value $.01 per share (“CenterState Common Stock”), and also hereby registers an indeterminate number of shares of CenterState Common Stock which may be required to be issued or may be issued pursuant to anti-dilution provisions of the Gateway Financial Holdings of Florida, Inc. (“Gateway”) Officers’ and Employees’ Stock Option Plan, as amended, and the Gateway Directors’ Stock Option Plan, as amended (collectively, the “Gateway Plans”), pursuant to provisions in an Agreement and Plan of Merger, dated as of November 30, 2016, by and between Gateway and CenterState, under which Gateway merged into CenterState, effective May 1, 2017. Following the closing of the merger transaction, no further grants will be made pursuant to the Gateway Plans and CenterState Common Stock is substituted for the common stock of Gateway under the Gateway Plans.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Items 1 and 2 of Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan in accordance with Rule 428 under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of the Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Upon request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are also incorporated by reference in the Section 10(a) prospectus, other documents required to be delivered to eligible participants pursuant to Rule 428(b) under the Securities Act, or additional information about the Plan, will be available without charge by contacting CenterState Banks, Inc. 1101 First Street South, Winter Haven, Florida 33880; telephone (863) 293-4710; Attention: Corporate Secretary.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by CenterState with the Commission (File No. 000-32017) are incorporated herein by reference:
| 1. |
CenterState’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed March 2, 2017 pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
| 2. |
CenterState’s Current Reports on Form 8-K, dated April 3, 2017, April 10, 2017 and May 1, 2017. |
| 3. |
The description of CenterState Common Stock contained in the Registration Statement on Form 8-A, dated November 27, 2000, including any amendments or reports filed with the Commission for the purpose of updating such description. |
All other documents subsequently filed by CenterState pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all the shares of CenterState Common Stock offered hereby have been sold or which deregisters all the shares of CenterState Common Stock then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document 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 superseded, to constitute a part of this Registration Statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
The validity of the shares of CenterState Common Stock offered under the Registration is being passed upon for CenterState by Smith Mackinnon, PA. A member of the firm owns 18,364 shares of CenterState Common Stock.
| Item 6. | Indemnification of Directors and Officers. |
Section 607.0850, Florida Statutes, grants a corporation the power to indemnify its directors, officers, employees, and agents for various expenses incurred resulting from various actions taken by its directors, officers, employees, or agents on behalf of the corporation. In general, if an individual acted in good faith and in a manner he 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 the action was unlawful, then the corporation has the power to indemnify said individual who was or is a party to any proceeding (including, in the absence of an adjudication of liability (unless the court otherwise determines), any proceeding by or in the right of the corporation) against liability expenses, including counsel fees, incurred in connection with such proceeding, including any appeal thereof (and, as to actions by or in the right of the corporation, against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof). To the extent that a director, officer, employee, or agent has been successful on the merits or otherwise in defense of any proceeding, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith. The term “proceeding” includes any threatened, pending, or completed action, suit, or other type of proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal.
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Any indemnification in connection with the foregoing, unless pursuant to a determination by a court, shall be made by the corporation upon a determination that indemnification is proper in the circumstances because the individual has met the applicable standard of conduct. The determination shall be made (i) by the board of directors by a majority vote of a quorum consisting of directors who are not parties to such proceeding; (ii) by majority vote of a committee duly designated by the board of directors consisting solely of two or more directors not at the time parties to the proceeding; (iii) by independent legal counsel selected by the board of directors or such committee; or (iv) by the shareholders by a majority vote of a quorum consisting of shareholders who are not parties to such proceeding. Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, then the directors or the committee shall evaluate the reasonableness of expenses and may authorize indemnification. Expenses incurred by an officer or director in defending a civil or criminal proceeding may be paid by the corporation in advance of the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if he is ultimately found not to be entitled to indemnification by the corporation. Expenses incurred by other employees and agents may be paid in advance upon such terms or conditions that the board of directors deems appropriate.
Section 607.0850 also provides that the indemnification and advancement of expenses provided pursuant to that Section are not exclusive, and a corporation may make any other or further indemnification or advancement of expenses of any of its directors, officers, employees, or agents, under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. However, indemnification or advancement of expenses may not be made if a judgment or other final adjudication established that the individual’s actions, or omissions to act, were material to the cause of action so adjudicated and constitute (i) a violation of the criminal law (unless the individual had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful); (ii) a transaction from which the individual derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the liability provisions of Section 607.0834 are applicable; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor in a proceeding by or in the right of a shareholder. Indemnification and advancement of expenses shall continue as, unless otherwise provided when authorized or ratified, 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 such person, unless otherwise provided when authorized or ratified.
Section 607.0850 further provides that unless the corporation’s articles of incorporation provide otherwise, then notwithstanding the failure of a corporation to provide indemnification, and despite any contrary determination of the board or of the shareholders in the specific case, a director, officer, employee, or agent of the corporation who is or was a party to a proceeding may apply for indemnification or advancement of expenses, or both, to the court conducting the proceeding, to the circuit court, or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice that it considers necessary, may order indemnification and advancement of expenses, including expenses incurred in seeking court-ordered indemnification or advancement of expenses, if it determines that (i) the individual is entitled to mandatory indemnification under Section 607.0850 (in which case the court shall also order the corporation to pay the director reasonable expenses incurred in obtaining court-ordered indemnification or advancement of expenses); (ii) the individual is entitled to indemnification or advancement of expenses, or both, by virtue of the exercise by the corporation of its power under Section 607.0850; or (iii) the individual is fairly and reasonably entitled to indemnification or advancement of expenses, or both, in view of all the relevant circumstances, regardless of whether the person met the standard of conduct set forth in Section 607.0850. Further, a corporation is granted the power to purchase and maintain indemnification insurance.
Article VI of the Bylaws of the Company provides for indemnification of the Company’s officers and directors and advancement of expenses. Among other things, indemnification is granted to each person who is or was a director, officer or employee of the Company and each person who is or was serving at the request of the Company as a director, officer, employee or agent of another corporation to the full extent authorized by law. Article VI of the Company’s Bylaws also sets forth certain conditions in connection with any advancement of expenses and provision by the Company of any other indemnification rights and remedies. The Company also is authorized to purchase insurance on behalf of any person against liability asserted whether or not the Company would have the power to indemnify such person under the Bylaws.
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| Item 7. | Exemption from Registration Claim. |
Not applicable.
| Item 8. | Exhibits. |
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Exhibit
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Description |
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| 4.1 | Articles of Incorporation (Incorporated by reference Exhibit 3.1 to the Company’s Form S-4 Registration Statement (File No. 333-95087), dated January 20, 2000 (the “Registration Statement”). | |
| 4.2 | Articles of Amendment to Articles of Incorporation (Incorporated by reference to Exhibit 99.1 to the Company’s Form 8-K, dated April 25, 2006). | |
| 4.3 | Articles of Amendment to the Articles of Incorporation (Incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K, dated December 16, 2009). | |
| 4.4 | Articles of Amendment to the Articles of Incorporation (Incorporated by reference to Exhibit 3.6 to the Company’s Form 10-K, dated March 4, 2010). | |
| 4.5 | Articles of Amendment to the Articles of Incorporation authorizing Preferred Shares (Incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K, dated November 24, 2008). | |
| 4.6 | Articles of Amendment to the Articles of Incorporation increasing the number of authorized common shares from 40,000,000 to 100,000,000 (Incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K, dated December 16, 2009). | |
| 4.7 | Amended and Restated Bylaws of CenterState Banks, Inc. (Incorporated by reference to Exhibit 3.7 to the Company’s Form 10-K, dated March 2, 2017). | |
| 4.8 | Common Stock Certificate of CenterState Banks, Inc. (Incorporated by reference to Exhibit 4.2 to the Registration Statement). | |
| 5.1* | Opinion of Smith Mackinnon, PA, as to the validity of the shares being issued. | |
| 10.1* | Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan and Amendments No. 1 through 4 thereto. | |
| 10.2* | Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan and Amendments No. 1 through 6 thereto. | |
| 23.1* | Consent of Crowe Horwath LLP. | |
| 23.2* | Consent of Smith Mackinnon P.A. (included in Exhibit 5). | |
| 24.1* | Power of Attorney (included on the signature page to this Registration Statement). | |
| * |
Filed herewith. |
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| 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:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events 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) do not apply if 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 Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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 Securities 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 this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered herein, 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 Securities 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 Securities 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 precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
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 Winter Haven, State of Florida, on the 1st day of May, 2017.
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CENTERSTATE BANKS, INC. |
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By: |
/s/ John C. Corbett |
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John C. Corbett |
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President and Chief Executive Officer |
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Each of the undersigned hereby constitutes and appoints John C. Corbett and Jennifer Idell, and each of them as attorneys for him and in his name, place and stead, and in any and all capacities, to execute and file any amendments, supplements or statements with respect to this Registration Statement, hereby giving and granting to said attorneys, and each of them, full power and authority to do and perform each and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as he might or could do if personally present at the doing thereof, hereby ratifying and confirming all that said attorney, or any of them, or their or his substitute or substitutes, may or shall lawfully do, or causes to be done, by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the 1st day of May, 2017.
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Signature |
Title |
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/s/ Ernest S. Pinner Ernest S. Pinner |
Executive Chairman of the Board | |
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/s/ John C. Corbett John C. Corbett |
Director and President and Chief Executive Officer
(Principal Executive Officer) |
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/s/ Jennifer Idell Jennifer Idell |
Executive Vice President and Chief Financial Officer (Principal
financial officer and principal accounting Officer) |
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/s/ James H. Bingham James H. Bingham |
Director | |
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/s/ G. Robert Blanchard, Jr. G. Robert Blanchard, Jr. |
Director | |
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/s/ C. Dennis Carlton C. Dennis Carlton |
Director | |
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/s/ Michael F. CiFerri Michael F. CiFerri |
Director | |
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/s/ Griffin A. Greene Griffin A. Greene |
Director | |
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/s/ Charles W. McPherson Charles W. McPherson |
Director | |
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/s/ George Tierso Nunez, II George Tierso Nunez, II |
Director | |
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/s/ Thomas E. Oakley Thomas E. Oakley |
Director | |
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/s/ William Knox Pou, Jr. William Knox Pou, Jr. |
Director | |
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/s/ Daniel R. Richey Daniel R. Richey |
Director | |
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/s/ Joshua A. Snively Joshua A. Snively |
Director | |
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EXHIBIT INDEX
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Exhibit No. |
Description |
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| 5.1 | - | Opinion and consent of Smith Mackinnon, PA, as to the validity of the shares being issued. | ||
| 10.1 | - | Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan and Amendments No. 1 through 4 thereto. | ||
| 10.2 | - | Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan and Amendments No. 1 through 6 thereto. | ||
| 23.1 | - | Consent of Crowe Horwath LLP. | ||
Exhibit 5.1
S MITH M ACKINNON , PA
ATTORNEYS AT LAW
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J OHN P. G REELEY |
S
UITE
1200
C ITRUS C ENTER 255 S OUTH O RANGE A VENUE O RLANDO , F LORIDA 32801 |
P
OST
O
FFICE
B
OX
2254
T
ELEPHONE
: (407)
843-7300
|
May 1, 2017
CenterState Banks, Inc.
1101 First Street South
Winter Haven, Florida 33880
| Re: |
The Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan, as amended, and Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan, as amended |
Gentlemen:
We have acted as counsel to CenterState Banks, Inc., a Florida corporation (the “Company”), in connection with the preparation and filing of a registration statement on Form S-8 under the Securities Act of 1933, as amended, with respect to 1,150,517 shares of the Company’s Common Stock, $0.01 par value (the “Shares”), to be offered pursuant to the above-referenced plans (the “Plans”).
In rendering this opinion, we have relied upon, among other things, our examination of the Plans and such records of the Company and certificates of its officers and of public officials as we have deemed necessary.
Based upon the foregoing and the further qualifications stated below, we are of the opinion that:
1. The Company is duly incorporated, validly existing and in good standing under the laws of the State of Florida; and
2. The Shares have been duly authorized and, when issued in accordance with the terms of the Plans, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to such registration statement.
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Very truly yours, |
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Smith Mackinnon, PA |
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By: |
/s/ John P. Greeley |
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John P. Greeley |
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JPG:br
Exhibit 10.1
GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN
ARTICLE I
Definitions
As used herein, the following terms have the meanings hereinafter set forth unless the context clearly indicates to the contrary:
(a) “Company” shall mean Gateway Financial Holdings of Florida, Inc., a Florida corporation.
(b) “Board” or “Board of Directors” shall mean the board of directors of the Company.
(c) “Change of Control” shall be deemed to have occurred if an entity or person (including a “Group”) as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial owner after such date of shares of Company Stock having 50% or more of the total number of votes that may be cast for the election of directors of the Company or the sale by the Company of all or substantially all its assets.
(d) “Code” shall mean the Internal Revenue Code of 1986, as amended, unless otherwise specifically provided herein.
(e) “Employee” shall mean any individual who is employed with the Company or a Subsidiary as an officer or employee.
(f) “Incentive Stock Option” shall have the meaning given to it by Section 422 of the Code.
(g) “Nonemployee Director” shall mean a member of the Board who is not an Employee.
(h) “Nonstatutory Stock Option” shall mean any Option granted by the Company pursuant to this Plan which is not an Incentive Stock Option.
(i) “Option” shall mean an option to purchase Stock granted by the Company pursuant to the provisions of this Plan.
(j) “Option Price” shall mean the purchase price of each share of Stock subject to Option, as defined in Section 5.2 hereof.
(k) “Optionee” shall mean an Employee who has received an Option granted by the Company hereunder.
(l) “Plan” shall mean this Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan.
(m) “Service” shall mean the tenure of an individual as an Employee of the Company or a Subsidiary.
(n) “Stock” shall mean the common stock of the Company, par value $5.00 per share, or, in the event that the outstanding shares of Stock are hereafter changed into or exchanged for shares of a different class of stock or securities of the Company or some other corporation, such other stock or securities.
(o) “Stock Option Agreement” shall mean the agreement between the Company and the Optionee under which the Optionee may purchase Stock pursuant to the Plan.
(p) “Stock Option Committee” shall mean such Board committee as may be designated by the Board to administer the Plan.
(q) “Subsidiary” shall mean any corporation or other entity which qualifies as a subsidiary of a corporation under the definition of “subsidiary corporation” contained in Section 424(f) of the Code.
ARTICLE II
The Plan
2.1 Name . This plan shall be known as the “Gateway Financial Holdings of Florida, Inc. Officers’ and Employees’ Stock Option Plan.”
2.2 Purpose . The purpose of the Plan is to advance the interests of the Company and its shareholders by affording to the Employees an opportunity to acquire or increase their proprietary interest in the Company by the grant of Options to such Employees under the terms set forth herein. By thus encouraging such Employees to become owners of Stock of the Company, the Company seeks to motivate, retain, and attract those highly competent individuals upon whose judgment, initiative, leadership, and continued efforts the success of the Company in large measure depends.
2.3 Effective Date . The Plan shall become effective on the later of (i) the approval of this Plan by the holders of a majority of the outstanding shares of Stock or (ii) the commencement by a Subsidiary of banking operations.
2.4 Participants . Only Employees of the Company or a Subsidiary shall be eligible to receive Options under the Plan.
ARTICLE III
Plan Administration
3.1 Stock Option Committee . This Plan shall be administered by the Stock Option Committee.
3.2 Power of the Stock Option Committee . The Stock Option Committee shall have full authority and discretion: (a) to determine, consistent with the provisions of this Plan, which of the Employees will be granted Options to purchase any shares of Stock which may be issued and sold hereunder as provided in Section 4.1 hereof, the times at which Options shall be granted, and the number of shares of Stock covered by each Option; (b) to determine whether the Options granted pursuant to this Plan shall be Incentive Stock Options or Nonstatutory Stock Options; (c) to construe and interpret the Plan; (d) to determine the terms and provisions of each respective Stock Option Agreement, which need
not be identical; and (e) to make all other determinations and take all other actions deemed necessary or advisable for the proper administration of the Plan. All such actions and determinations shall be conclusively binding upon all persons for all purposes. Unless otherwise indicated by the Stock Option Committee, Options granted pursuant to this Plan shall be Incentive Stock Options.
ARTICLE IV
Shares of Stock Subject to Plan
4.1 Limitations . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the number of shares of Stock which may be issued and sold hereunder pursuant to Stock Option Agreements shall not exceed Three Hundred Fifty Four Thousand Seven Hundred Seventy (354,770) shares. Shares issued pursuant to the exercise of Options shall be issuable only from authorized and unissued shares.
4.2 Options Granted Under Plan . Shares of Stock with respect to which an Option granted hereunder shall have been exercised shall not again be available for Option hereunder. If Options granted hereunder shall terminate for any reason without being wholly exercised, then the Stock Option Committee shall have the discretion to grant new Options to Optionees hereunder covering the number of shares to which such terminated Options related.
4.3 Stock Adjustments; Mergers and Combinations . Notwithstanding any other provision in this Plan, if the outstanding shares of Stock are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company or of any other corporation by reason of any merger, consolidation, liquidation, recapitalization, reclassification, stock split up, combination of shares, or stock dividend, the total number of shares set forth in Section 4.1 shall be proportionately and appropriately adjusted by the Stock Option Committee. If the Company continues in existence, the number and kind of shares that are subject to any Option and the Option Price per share shall be proportionately and appropriately adjusted without any change in the aggregate price to be paid therefor upon exercise of the Option. If the Company will not remain in existence or a majority of its stock will be purchased or acquired by a single purchaser or group of purchasers acting together, then the Stock Option Committee may (i) declare that all Options shall terminate 30 days after the Stock Option Committee gives written notice to all Optionees of their immediate right to exercise all Options then outstanding (without regard to limitations on exercise otherwise contained in the Options), or (ii) notify all Optionees that all Options granted under the Plan shall apply with appropriate adjustments as determined by the Stock Option Committee to the securities of the successor corporation to which holders of the numbers of shares subject to such Options would have been entitled, or (iii) some combination of aspects of (i) and (ii). The determination by the Stock Option Committee as to the terms of any of the foregoing adjustments shall be conclusive and binding.
4.4 Acceleration of Option Exercise . Subject to Section 4.3, upon dissolution or liquidation of the Company, any merger or combination in which the Company is not a surviving corporation, or sale of substantially all of the assets of the Company is involved, or upon any Change of Control, the Optionee shall have the right to exercise his Option thereafter in whole or in part notwithstanding the provisions of Section 5.3 hereof, to the extent that it shall not have been exercised.
ARTICLE V
Options
5.1 Option Grant and Agreement . Each Option granted hereunder shall be evidenced by minutes of a meeting of the Stock Option Committee authorizing the same and by a written Stock Option Agreement dated as of the date of grant and executed by the Company and the Optionee, which Stock Option
Agreement shall set forth such terms and conditions as may be determined by the Stock Option Committee to be consistent with the Plan and shall indicate whether the Option that it evidences is intended to be an Incentive Stock Option or a Nonstatutory Stock Option.
5.2 Option Price . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the Option Price of each share of Stock subject to Option shall be the greater of Ten and 00/100 Dollars ($10.00) or the fair market value of the Stock on the date of grant. If the Stock is publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined by the Board of Directors by any reasonable method using market quotations. If the Stock is not publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined in good faith by the Board of Directors using any reasonable method (and the book value of such shares may be substituted for the fair market value). Notwithstanding the foregoing, at no time shall the exercise price be less than the fair market value of the shares on the date the Option is granted or the par value thereof as determined by the Board of Directors.
5.3 Option Exercise . Options may be exercised in whole or in part from time to time with respect to whole shares only, within the period permitted for the exercise thereof. Each Option shall become exercisable in the following manner:
| (i) |
On the fourth anniversary of the date of grant of the Options, thirty-three percent (33%) of the Options shall be exercisable; |
| (ii) |
On the fifth anniversary of the date of grant of such Options, sixty-six percent (66%) of the Options shall be exercisable; and |
| (iii) |
On the sixth anniversary of the date of grant of such Options and thereafter, such Options shall be exercisable as to all shares covered by such Options. |
Notwithstanding any other provision in this Plan, no option granted under the Plan may be exercised more than ten (10) years after the date on which it is granted. Options shall be exercised by: (i) written notice of intent to exercise the Option with respect to a specific number of shares of Stock which is delivered by hand delivery or registered or certified mail, return receipt requested, to the Company at its principal office; and (ii) payment in full (by a check or money order payable to “Gateway Financial Holdings of Florida, Inc.”) to the Company at such office of the amount of the Option Price for the number of shares of Stock with respect to which the Option is then being exercised. In addition to and at the time of payment of the Option Price, the Optionee shall pay to the Company in cash the full amount of all federal, state, and local withholding or other employment taxes, if any, applicable to the taxable income of the Optionee resulting from such exercise, and any sales, transfer, or similar taxes imposed with respect to the issuance or transfer of shares of Stock in connection with such exercise.
5.4 Nontransferability of Option . No Option shall be transferred by an Optionee otherwise than by will or the laws of descent and distribution. During the lifetime of an Optionee, the Option shall be exercisable only by him or by his legal guardian or personal representative, or by an individual holding on behalf of the Optionee a valid Durable Power of Attorney.
5.5 Effect of Death, Disability, Retirement, or Other Termination of Service .
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for “cause,” as defined in Section 5.5(b) hereof, then no Options held |
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by such Optionee, which are unexercised in whole or in part, may be exercised on or after the date on which such Optionee is first notified in writing by the Company or its Subsidiaries of such termination for cause. |
| (b) |
For purposes of this Section 5.5, termination for “cause” shall mean termination for the Optionee’s personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, violation of any law, rule, or regulation (other than traffic violations or similar offenses), violation of any agreement or order with any Company regulatory agency, or failure by the Optionee to perform his stated duties. |
| (c) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than for cause (as defined in Section 5.5(b) hereof) and other than the retirement after age sixty-five (65) or the disability (as defined in Section 5.5(e) hereof) or death of the Optionee, then no Options held by such Optionee, which are unexercised in whole or in part, may be exercised on or after such termination of Service. |
| (d) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated by reason of retirement after age sixty-five (65) or the death or disability (as defined in Section 5.5(e) hereof) of the Optionee, then the Optionee or personal representative or administrator of the estate of the Optionee or the successor Trustee of the Optionee’s Trust containing dispositive provisions, or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for ninety (90) days after the date of such termination (one year in the case of death or disability), and to the extent of the full amount of the shares subject to such Options. |
| (e) |
For purposes of this Section 5.5, the terms “disability” and “disabled” shall mean the inability of the Optionee by reason of illness or physical or mental disability to perform the employment duties required of the Optionee (as determined by the Company) for a period of 90 consecutive days. |
| (f) |
No transfer of an Option by the Optionee by will or by the laws of descent and distribution shall be effective to bind the Company unless the Company shall have been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Company may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions of such Option. |
5.6 Rights as Shareholder . An Optionee or a transferee of an Option shall have no rights as a shareholder with respect to any shares of Stock subject to such Option prior to the purchase of such shares by exercise of such Option as provided herein.
5.7 Investment Intent . Upon or prior to the exercise of all or any portion of an Option, the Optionee shall furnish to the Company in writing such information or assurances as, in the Company’s opinion, may be necessary to enable it to comply fully with the Securities Act of 1933, as
amended, and the rules and regulations thereunder and any other applicable statutes, rules, and regulations. Without limiting the foregoing, if a registration statement is not in effect under the Securities Act of 1933, as amended, with respect to the shares of Stock to be issued upon exercise of an Option, the Company shall have the right to require, as a condition to the exercise of such Option, that the Optionee represent to the Company in writing that the shares to be received upon exercise of such Option will be acquired by the Optionee for investment and not with a view to distribution and that the Optionee agree, in writing, that such shares will not be disposed of except pursuant to an effective registration statement, unless the Company shall have received an opinion of counsel reasonably acceptable to it to the effect that such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended. The Company shall have the right to endorse on certificates representing shares of Stock issued upon exercise of an Option such legends referring to the foregoing representations and restrictions or any other applicable restrictions on resale or disposition as the Company, in its discretion, shall deem appropriate.
ARTICLE VI
Incentive Stock Options
6.1 Requirements . All Incentive Stock Options granted pursuant to the terms of this Plan shall be subject to the additional limitations and restrictions as set forth in the Code and in this Article VI. Any Option granted pursuant to this Plan which does not fulfill all of the provisions of this Article VI shall not be an Incentive Stock Option and thus shall be a Nonstatutory Stock Option.
6.2 Grant Period . All Incentive Stock Options granted hereunder must be granted within ten (10) years from the earlier of: (a) the date the Plan is adopted by the Board; or (b) the date the Plan is approved by the shareholders of the Company.
6.3 Eligibility . The Stock Option Committee shall determine which Employees shall receive Incentive Stock Options. No member of the Stock Option Committee is eligible to receive Incentive Stock Options. Incentive Stock Options may not be granted to any Employee who, at the time the Incentive Stock Option is granted, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company unless: (a) such Incentive Stock Option by its terms is not exercisable after the expiration of five (5) years from the date of its grant; and (b) the Option Price of the shares covered by such Incentive Stock Option is not less than one hundred and ten percent (110%) of the fair market value of such shares on the date that such Incentive Stock Option is granted.
6.4 Special Rule Regarding Exercisability . If, for any reason, any Option granted hereunder which is intended to be an Incentive Stock Option shall exceed the limitation on exercisability contained in the Code at any time, such Options shall nevertheless be exercisable, but: (a) any exercise of such Option shall be deemed to be an exercise of an Incentive Stock Option first until the portion of such Option qualifying as an Incentive Stock Option shall have been exercised in full; and (b) the portion of such Option in excess of the foregoing limitation on exercisability shall be deemed to be a Nonstatutory Stock Option.
ARTICLE VII
Nonstatutory Stock Options
The Stock Option Committee may grant Nonstatutory Stock Options under this Plan. Such Nonstatutory Stock Options must fulfill all of the requirements of all provisions of this Plan except for those contained in Article VI hereof. Subject to the approval and acceptance of the Stock Option Committee, any Employee who is granted a Nonstatutory Stock Option pursuant to this Plan shall be entitled to elect to surrender all or any part of such Nonstatutory Stock Option to the Company and
receive, in exchange, an Incentive Stock Option covering the same number of shares as those with respect to which the Nonstatutory Stock Option was surrendered. Any such election shall be valid and effective only upon its approval and acceptance by the Stock Option Committee.
ARTICLE VIII
Stock Certificates
The Company shall not be required to issue or deliver any certificate for shares of Stock purchased upon the exercise of any Option granted hereunder or of any portion thereof, prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which the Stock is then listed, if any;
(b) The completion of any registration or other qualification of such shares under any federal or state law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory agency, which the Company shall in its sole discretion determine to be necessary or advisable;
(c) The obtaining of any approval or other clearance from any federal or state governmental agency which the Company shall in its sole discretion determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the exercise of the Option as the Company from time to time may establish for reasons of administrative convenience.
ARTICLE IX
Termination, Amendment, and Modification of Plan
The Board may at any time terminate, and may at any time and from time to time and in any respect amend or modify, the Plan; provided, however, that no such action of the Board without approval of the shareholders of the Company may increase the total number of shares of Stock subject to the Plan except as contemplated in Section 4.3 hereof or alter the class of persons eligible to receive Options under the Plan, and provided further that no termination, amendment, or modification of the Plan shall without the written consent of the Optionee of such Option adversely affect the rights of the Optionee with respect to an Option or the unexercised portion thereof.
Notwithstanding any other provision of this Plan, the Company’s primary federal Company regulator shall at any time have the right to direct the Company to require Optionees to exercise their Options or forfeit their Options if the Company’s capital falls below the minimum requirements, as determined by such federal Company regulator.
ARTICLE X
Miscellaneous
10.1 Service . Nothing in the Plan or in any Option granted hereunder or in any Stock Option Agreement relating thereto shall confer upon any Employee the right to continue in the Service of the Company or any Subsidiary.
10.2 Other Compensation Plans . The adoption of the Plan shall not affect any other stock option or incentive or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company or any Subsidiary from establishing any other forms of incentive or other compensation for directors, officers, or employees of the Company or any Subsidiary.
10.3 Plan Binding on Successors . The Plan shall be binding upon the successors and assigns of the Company.
10.4 Singular, Plural; Gender . Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include the feminine gender.
10.5 Applicable Law . This Plan shall be governed by and construed in accordance with the laws of the State of Florida.
10.6 Headings, etc., No Part of Plan . Headings of Articles and Sections hereof are inserted for convenience and reference; they constitute no part of the Plan.
10.7 Severability . If any provision or provisions of this Plan shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the undersigned President and Chief Executive Officer of the Company has signed this Plan for and on behalf of the Company.
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By: |
/s/ David K. Maholias |
|
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David K. Maholias |
||
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President and Chief Executive Officer |
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Dated: October 19, 2005 |
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AMENDMENT NO. 1 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN
THIS AMENDMENT NO. 1 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN (the “Amendment”) is made as of the 28 th day of December, 2007.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Officers’ and Employees’ Stock Option Plan (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 4.1 . Section 4.1 of the Plan shall be amended to provide that, subject to adjustment pursuant to the provisions of Section 4.3 of the Plan, the number of shares of Stock which may be issued and sold under the Plan pursuant to Stock Option Agreements shall not exceed Five Hundred Thirty-Four Thousand Seven Hundred Seventy (534,770) shares.
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. | ||
| By: |
/s/ David K. Maholias |
|
| David K. Maholias | ||
| President and Chief Executive Officer | ||
AMENDMENT NO. 2 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN
THIS AMENDMENT NO. 2 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN (the “Amendment”) is made as of the 28 th day of April, 2011.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Officers’ and Employees’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 5.2 . Section 5.2 of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
Section 5.2. Option Price . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the Option Price of each share of Stock subject to Option shall be the greater of the book value per share of Stock or the fair market value of the Stock on the date of grant. If the Stock is publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined by the Board of Directors by any reasonable method using market quotations. If the Stock is not publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined in good faith by the Board of Directors using any reasonable method (and the book value of such shares may be substituted for the fair market value). Notwithstanding the foregoing, at no time shall the exercise price be less than the fair market value of the shares on the date the Option is granted or the par value thereof as determined by the Board of Directors.
3. Amendment of Section 5.5(b) . Section 5.5(b) of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than for cause (as defined in Section 5.5(c) hereof) and other than the retirement after age sixty-five (65) or the disability (as defined in Section 5.5(e) hereof) or death of the Optionee, then the Optionee shall have the right to exercise the Optionee’s Options for a period of ninety (90) days after the date of such termination of Service and only to the extent such Options were exercisable on the termination of Service. |
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. | ||
| By: |
/s/ David K. Maholias |
|
| David K. Maholias | ||
| President and Chief Executive Officer | ||
AMENDMENT NO. 3 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN
THIS AMENDMENT NO. 3 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN (the “Amendment”) is made effective as of the 1 st day of January, 2012.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Officers’ and Employees’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 5.5 . Section 5.5 of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
5.5 Effect of Death, Disability, Retirement or Other Termination of Service .
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for “cause,” as defined in Section 5.5(b) hereof, then no Options held by such Optionee, which are unexercised in whole or in part, may be exercised on or after the date on which such Optionee is first notified in writing by the Company or its Subsidiaries of such termination for cause. |
| (b) |
For purposes of this Section 5.5, termination for “cause” shall mean termination for the Optionee’s personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, violation of any law, rule, or regulation (other than traffic violations or similar offenses), violation of any agreement or order with any Company regulatory agency, or failure by the Optionee to perform his stated duties. |
| (c) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than (i) for cause (as defined in Section 5.5(b) hereof), (ii) the death of the Optionee, (iii) the disability of the Optionee, (iv) by the Company or its Subsidiaries without cause (as defined in Section 5.5(b) hereof) (and where the Optionee has at least three years of service with the Company or its Subsidiaries prior to such |
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termination), or (v) by the Company as a result of a Bank Subsidiary Merger (and where the Optionee has at least three years of Service with the Company or its Subsidiaries prior to the closing of such Bank Subsidiary Merger), then the Optionee or personal representative or administrator of the estate of the Optionee or the successor trustee of the Optionee’s trust containing dispositive provisions or the person or persons to whom an Option was granted shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for a period of ninety (90) days after the date of such termination of Service and only to the extent such Options were exercisable on the termination of Service. |
| (d) |
If an Optionee’s Service with the Company and its Subsidiary shall be terminated by the Company (i) without cause (as defined in Section 5.5(b) hereof) and when at the time of such termination the Optionee has at least three years of Service with the Company or its Subsidiaries, or (ii) as a result of the merger of one or more of the subsidiary Banks of the Company with an into another subsidiary Bank of the Company (a “Bank Subsidiary Merger”) (and where the Optionee has at least three years of Service with the Company or its Subsidiaries prior to the closing of such Bank Subsidiary Merger), then the Optionee or personal representative or administrator of the estate of the Optionee or the successor trustee of the Optionee’s trust containing dispositive provisions or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for a period ending on the tenth anniversary of the date of grant of such Options (subject to Section 4.3 of the Plan) and to the extent of the full amount of shares subject to such Options ( i.e., all Options will be deemed exercisable). |
| (e) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated by reason of the death or disability (as defined in Section 5.5(f) hereof) of the Optionee, then the Optionee or personal representative or administrator of the estate of the Optionee or the successor Trustee of the Optionee’s Trust containing dispositive provisions, or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for one year, and to the extent of the full amount of the shares subject to such Options ( i.e., all Options will be deemed exercisable). |
| (f) |
For purposes of this Section 5.5, the terms “disability” and “disabled” shall mean the inability of the Optionee by reason of illness or physical or mental disability to perform the employment duties required of the Optionee (as determined by the Company) for a period of 90 consecutive days. |
| (g) |
No transfer of an Option by the Optionee by will or by the laws of descent and distribution shall be effective to bind the Company unless the Company shall have been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Company may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions of such Option. |
3. Effect of Amendment . The foregoing Amendment shall be effective as of January 1, 2012 and applicable to all Options outstanding as of that date and Options granted by the Company following that date. The foregoing Amendment is also subject to the approval by the shareholders of the Company on or before December 31, 2012. Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
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GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. |
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO. 4 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN
THIS AMENDMENT NO. 4 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. OFFICERS’ AND EMPLOYEES’ STOCK OPTION PLAN (the “Amendment”) is made effective as of the 28 th day of May, 2015.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Officers’ and Employees’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Plan . Notwithstanding any other provisions of the Plan, the Board of Directors shall have the authority to annually review and determine if previously issued Options should be amended to extend the termination date of the Option from ten years to fifteen years, and apply the appropriate expense of such Option extension in the year the Option is amended. Any such extension of an Option also will convert the Option from an incentive stock option to a non-qualified stock option. This amendment is not intended to amend any other provisions of the Plan, including Sections 4.3 and 5.5 thereof.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. | ||
| By: |
/s/ David K. Maholias |
|
| David K. Maholias | ||
| President and Chief Executive Officer | ||
Exhibit 10.2
GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
DIRECTORS’ STOCK OPTION PLAN
ARTICLE I
Definitions
As used herein, the following terms have the meanings hereinafter set forth unless the context clearly indicates to the contrary:
(a) “Company” shall mean Gateway Financial Holdings of Florida, Inc., a Florida corporation.
(b) “Board” or “Board of Directors” shall mean the board of directors of the Company.
(c) “Change of Control” shall be deemed to have occurred if an entity or person (including a “Group”) as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the beneficial owner after such date of shares of Company Stock having 50% or more of the total number of votes that may be cast for the election of directors of the Company or the sale by the Company of all or substantially all its assets.
(d) “Director” shall mean any individual who is serving as a director of the Company or a Subsidiary.
(e) “Option” shall mean an option to purchase Stock granted by the Company pursuant to the provisions of this Plan.
(f) “Option Price” shall mean the purchase price of each share of Stock subject to Option, as defined in Section 5.2 hereof.
(g) “Optionee” shall mean a Director who has received an Option granted by the Company hereunder.
(h) “Plan” shall mean this Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan.
(i) “Service” shall mean the tenure of an individual as a director of the Company or a Subsidiary.
(j) “Stock” shall mean the common stock of the Company, par value $5.00 per share, or, in the event that the outstanding shares of Stock are hereafter changed into or exchanged for shares of a different class of stock or securities of the Company or some other corporation, such other stock or securities.
(k) “Stock Option Agreement” shall mean the agreement between the Company and the Optionee under which the Optionee may purchase Stock pursuant to the Plan.
(l) “Stock Option Committee” shall mean such Board committee as may be designated by the Board to administer the Plan.
(m) “Subsidiary” shall mean any corporation or other entity which qualifies as a subsidiary of a corporation under the definition of “subsidiary corporation” contained in Section 424(f) of the Internal Revenue Code of 1986, as amended.
ARTICLE II
The Plan
2.1 Name . This plan shall be known as the “Gateway Financial Holdings of Florida, Inc. Directors’ Stock Option Plan.”
2.2 Purpose . The purpose of the Plan is to advance the interests of the Company and its shareholders by affording to the Directors an opportunity to increase their proprietary interest in the Company and recognize their efforts in connection with the organization of the Company by the grant of Options to such Directors under the terms set forth herein.
2.3 Effective Date . The Plan shall become effective on the later of (i) the approval of this Plan by the holders of a majority of the outstanding shares of Stock or (ii) the commencement by a Subsidiary of banking operations.
2.4 Participants . Only non-employee Directors of the Company or a Subsidiary shall receive Options under the Plan.
ARTICLE III
Plan Administration
3.1 Stock Option Committee . This Plan shall be administered by the Stock Option Committee.
3.2 Power of the Stock Option Committee . The Stock Option Committee shall have full authority and discretion: (a) to determine, consistent with the provisions of this Plan, which of the Directors will be granted Options to purchase any shares of Stock which may be issued and sold hereunder as provided in Section 4.1 hereof, the times at which Options shall be granted, and the number of shares of Stock covered by each Option; (b) to construe and interpret the Plan; (c) to determine the terms and provisions of each respective Stock Option Agreement, which need not be identical; and (d) to make all other determinations and take all other actions deemed necessary or advisable for the proper administration of the Plan. All such actions and determinations shall be conclusively binding upon all persons for all purposes.
ARTICLE IV
Shares of Stock Subject to Plan
4.1 Limitations . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the number of shares of Stock which may be issued and sold hereunder pursuant to Stock Option Agreements shall not exceed Three Hundred Fifty Four Thousand Seven Hundred Seventy (354,770) shares. Shares issued pursuant to the exercise of Options shall be issuable only from authorized and unissued shares.
4.2 Options Granted Under Plan . Shares of Stock with respect to which an Option granted hereunder shall have been exercised shall not again be available for Option hereunder. If Options granted hereunder shall terminate for any reason without being wholly exercised, then the Stock Option Committee shall have the discretion to grant new Options to Optionees hereunder covering the number of shares to which such terminated Options related.
4.3 Stock Adjustments; Mergers and Combinations . Notwithstanding any other provision in this Plan, if the outstanding shares of Stock are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company or of any other corporation by reason of any merger, consolidation, liquidation, recapitalization, reclassification, stock split up, combination of shares, or stock dividend, the total number of shares set forth in Section 4.1 shall be proportionately and appropriately adjusted by the Stock Option Committee. If the Company continues in existence, the number and kind of shares that are subject to any Option and the Option Price per share shall be proportionately and appropriately adjusted without any change in the aggregate price to be paid therefor upon exercise of the Option. If the Company will not remain in existence or a majority of its stock will be purchased or acquired by a single purchaser or group of purchasers acting together, then the Stock Option Committee may (i) declare that all Options shall terminate 30 days after the Stock Option Committee gives written notice to all Optionees of their immediate right to exercise all Options then outstanding (without regard to limitations on exercise otherwise contained in the Options), or (ii) notify all Optionees that all Options granted under the Plan shall apply with appropriate adjustments as determined by the Stock Option Committee to the securities of the successor corporation to which holders of the numbers of shares subject to such Options would have been entitled, or (iii) some combination of aspects of (i) and (ii). The determination by the Stock Option Committee as to the terms of any of the foregoing adjustments shall be conclusive and binding.
4.4 Acceleration of Option Exercise . Subject to Section 4.3, upon any Change of Control, the Optionee shall have the right to exercise his Option thereafter in whole or in part notwithstanding the provisions of Section 5.3 hereof, to the extent that it shall not have been exercised.
ARTICLE V
Options
5.1 Option Grant and Agreement . Each Option granted hereunder shall be evidenced by minutes of a meeting of the Stock Option Committee authorizing the same and by a written Stock Option Agreement dated as of the date of grant and executed by the Company and the Optionee, which Stock Option Agreement shall set forth such terms and conditions as may be determined by the Stock Option Committee to be consistent with the Plan.
5.2 Option Price . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the Option Price of each share of Stock subject to Option shall be the greater of Ten and 00/100 Dollars ($10.00) or the fair market value of the Stock on the date of grant. If the Stock is publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined by the Board of Directors by any reasonable method using market quotations. If the Stock is not publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined in good faith by the Board of Directors using any reasonable method (and the book value of such shares may be substituted for the fair market value). Notwithstanding the foregoing, at no time shall the exercise price be less than the fair market value of the shares on the date the Option is granted or the par value thereof as determined by the Board of Directors.
5.3 Option Exercise . Options may be exercised in whole or in part from time to time with respect to whole shares only, within the period permitted for the exercise thereof. Each Option shall become exercisable in the following manner:
| (i) |
On the first anniversary of the date of grant of the Options, twenty-five percent (25%) of the Options shall be exercisable; |
| (ii) |
On the second anniversary of the date of grant of such Options, fifty percent (50%) of the Options shall be exercisable; |
| (iii) |
On the third anniversary of the date of grant of such Options, such Options shall be exercisable only to the extent of seventy-five percent (75%) of the shares covered by such Options; and |
| (iv) |
On the fourth anniversary of the date of grant of such Options and thereafter, such Options shall be exercisable as to all shares covered by such Options. |
Notwithstanding any other provision in this Plan, no option granted under the Plan may be exercised more than ten (10) years after the date on which it is granted. Options shall be exercised by: (i) written notice of intent to exercise the Option with respect to a specific number of shares of Stock which is delivered by hand delivery or registered or certified mail, return receipt requested, to the Company at its principal office; and (ii) payment in full (by a check or
money order payable to “Gateway Financial Holdings of Florida, Inc.”) to the Company at such office of the amount of the Option Price for the number of shares of Stock with respect to which the Option is then being exercised. In addition to and at the time of payment of the Option Price, the Optionee shall pay to the Company in cash the full amount of all federal, state, and local withholding or other employment taxes, if any, applicable to the taxable income of the Optionee resulting from such exercise, and any sales, transfer, or similar taxes imposed with respect to the issuance or transfer of shares of Stock in connection with such exercise.
5.4 Nontransferability of Option . No Option shall be transferred by an Optionee otherwise than by will or the laws of descent and distribution. During the lifetime of an Optionee, the Option shall be exercisable only by him or by his legal guardian or personal representative, or by an individual holding on behalf of the Optionee a valid Durable Power of Attorney.
5.5 Effect of Death, Disability, Retirement, or Other Termination of Service .
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than the retirement after age sixty-five (65) or the disability (as defined in Section 5.5(c) hereof) or death of the Optionee, then no Options held by such Optionee, which are unexercised in whole or in part, may be exercised on or after such termination of Service. |
| (b) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated by reason of retirement after age sixty-five (65) or the death or disability (as defined in Section 5.5(c) hereof) of the Optionee, then the Optionee or personal representative or administrator of the estate of the Optionee or the successor Trustee of the Optionee’s Trust containing dispositive provisions or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for ninety (90) days after the date of such termination (one year in the case of death or disability), and to the extent of the full amount of the shares subject to such Options. |
| (c) |
For purposes of this Section 5.5, the terms “disability” and “disabled” shall mean the inability of the Optionee by reason of illness or physical or mental disability to perform the director duties required of the Optionee (as determined by the Company) for a period of 90 consecutive days. |
| (d) |
No transfer of an Option by the Optionee by will or by the laws of descent and distribution shall be effective to bind the Company and its Subsidiaries unless the Company shall have been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Company may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions of such Option. |
5.6 Rights as Shareholder . An Optionee or a transferee of an Option shall have no rights as a shareholder with respect to any shares of Stock subject to such Option prior to the purchase of such shares by exercise of such Option as provided herein.
5.7 Investment Intent . Upon or prior to the exercise of all or any portion of an Option, the Optionee shall furnish to the Company in writing such information or assurances as, in the Company’s opinion, may be necessary to enable it to comply fully with the Securities Act of 1933, as amended, and the rules and regulations thereunder and any other applicable statutes, rules, and regulations. Without limiting the foregoing, if a registration statement is not in effect under the Securities Act of 1933, as amended, with respect to the shares of Stock to be issued upon exercise of an Option, the Company shall have the right to require, as a condition to the exercise of such Option, that the Optionee represent to the Company in writing that the shares to be received upon exercise of such Option will be acquired by the Optionee for investment and not with a view to distribution and that the Optionee agree, in writing, that such shares will not be disposed of except pursuant to an effective registration statement, unless the Company shall have received an opinion of counsel reasonably acceptable to it to the effect that such disposition is exempt from the registration requirements of the Securities Act of 1933, as amended. The Company shall have the right to endorse on certificates representing shares of Stock issued upon exercise of an Option such legends referring to the foregoing representations and restrictions or any other applicable restrictions on resale or disposition as the Company, in its discretion, shall deem appropriate.
ARTICLE VI
Stock Certificates
The Company shall not be required to issue or deliver any certificate for shares of Stock purchased upon the exercise of any Option granted hereunder or of any portion thereof, prior to fulfillment of all of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which the Stock is then listed, if any;
(b) The completion of any registration or other qualification of such shares under any federal or state law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory agency, which the Company shall in its sole discretion determine to be necessary or advisable;
(c) The obtaining of any approval or other clearance from any federal or state governmental agency which the Company shall in its sole discretion determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the exercise of the Option as the Company from time to time may establish for reasons of administrative convenience.
ARTICLE VII
Termination, Amendment, and Modification of Plan
The Board may at any time terminate, and may at any time and from time to time and in any respect amend or modify, the Plan; provided, however, that no such action of the Board without approval of the shareholders of the Company may increase the total number of shares of Stock subject to the Plan except as contemplated in Section 4.3 hereof or alter the class of persons eligible to receive Options under the Plan, and provided further that no termination, amendment, or modification of the Plan shall without the written consent of the Optionee of such Option adversely affect the rights of the Optionee with respect to an Option or the unexercised portion thereof.
Notwithstanding any other provision of this Plan, the Company’s primary federal Company regulator shall at any time have the right to direct the Company to require Optionees to exercise their Options or forfeit their Options if the Company’s capital falls below the minimum requirements, as determined by such federal Company regulator.
ARTICLE VIII
Miscellaneous
8.1 Service . Nothing in the Plan or in any Option granted hereunder or in any Stock Option Agreement relating thereto shall confer upon any Director the right to continue in the Service of the Company or any Subsidiary.
8.2 Other Compensation Plans . The adoption of the Plan shall not affect any other stock option or incentive or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company or any Subsidiary from establishing any other forms of incentive or other compensation for directors of the Company or any Subsidiary.
8.3 Plan Binding on Successors . The Plan shall be binding upon the successors and assigns of the Company.
8.4 Singular, Plural; Gender . Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include the feminine gender.
8.5 Applicable Law . This Plan shall be governed by and construed in accordance with the laws of the State of Florida.
8.6 Headings, etc., No Part of Plan . Headings of Articles and Sections hereof are inserted for convenience and reference; they constitute no part of the Plan.
8.7 Severability . If any provision or provisions of this Plan shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the undersigned President and Chief Executive Officer of the Company has signed this Plan for and on behalf of the Company.
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/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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Dated: October 19, 2005 |
AMENDMENT NO. 1 TO GATEWAY FINANCIAL HOLDINGS, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 1 TO THE GATEWAY FINANCIAL HOLDINGS, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made as of the 9 th day of March, 2007.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 4.1 . Section 4.1 of the Plan shall be amended to provide that, subject to adjustment pursuant to the provisions of Section 4.3 of the Plan, the number of shares of Stock which may be issued and sold under the Plan pursuant to Stock Option Agreements shall not exceed Six Hundred Sixty Seven Thousand Six Hundred Sixty Two (667,662) shares.
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS, INC. | ||
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO. 2 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 2 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made as of the 28 th day of December, 2007.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 4.1 . Section 4.1 of the Plan shall be amended to provide that, subject to adjustment pursuant to the provisions of Section 4.3 of the Plan, the number of shares of Stock which may be issued and sold under the Plan pursuant to Stock Option Agreements shall not exceed Seven Hundred Twenty Seven Thousand Six Hundred Sixty Two (727,662) shares.
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. | ||
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO.3 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 3 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made as of the 28 th day of April, 2011.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 5.2 . Section 5.2 of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
Section 5.2. Option Price . Subject to adjustment pursuant to the provisions of Section 4.3 hereof, the Option Price of each share of Stock subject to Option shall be the greater of the book value per share of Stock or the fair market value of the Stock on the date of grant. If the Stock is publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined by the Board of Directors by any reasonable method using market quotations. If the Stock is not publicly held and actively traded in an established market on the date of grant, then the fair market value of the Stock on the date of grant shall be determined in good faith by the Board of Directors using any reasonable method (and the book value of such shares may be substituted for the fair market value). Notwithstanding the foregoing, at no time shall the exercise price be less than the fair market value of the shares on the date the Option is granted or the par value thereof as determined by the Board of Directors.
3. Amendment of Section 5.5(a) . Section 5.5(a) of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than the retirement after age sixty-five (65) or the disability (as defined in Section 5.5(c) hereof) or death of the Optionee, then the Optionee shall have the right to exercise the Optionee’s Options for a period of ninety (90) days after the date of such termination of Service and only to the extent such Options were exercisable on the termination of Service. |
1
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
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GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. |
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO. 4 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 4 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made effective as of the 1 st day of January, 2012.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 5.5 . Section 5.5 of the Plan shall be amended by deleting such provision in its entirety and inserting the following in lieu thereof:
5.5 Effect of Death, Disability, Retirement or Other Termination of Service .
| (a) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than (i) death, (ii) disability, or (iii) by the Company as a result of a Bank Subsidiary Merger ( and where the Optionee has at least two years of Service with the Company or its Subsidiaries prior to the closing of such Bank Subsidiary Merger), then the Optionee or personal representative or administrator of the estate of the Optionee or the successor trustee of the Optionee’s trust containing dispositive provisions or the person or persons to whom an Option was granted shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for a period of ninety (90) days after the date of such termination of Service and only to the extent such Options were exercisable on the termination of Service. |
| (b) |
If the Optionee’s Service with the Company and its Subsidiary shall be terminated by the Company as a result of the merger of one or more of the subsidiary Banks of the Company with and into another subsidiary Bank of the Company (a “Bank Subsidiary Merger”) (and where the Optionee has at least two years of Service with the Company or its Subsidiaries |
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prior to the closing of such Bank Subsidiary Merger), then the Optionee or personal representative or administrator of the estate of the Optionee or the successor trustee of the Optionee’s trust containing dispositive provisions or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for a period ending on the tenth anniversary of the date of grant of such Options (subject to Section 4.3 of the Plan) and to the extent of the full amount of shares subject to such Options ( i.e., all Options will be deemed exercisable). |
| (c) |
If an Optionee’s Service with the Company and its Subsidiaries shall be terminated by reason of the death or disability (as defined in Section 5.5(d) hereof) of the Optionee, then the Optionee or personal representative or administrator of the estate of the Optionee or the successor Trustee of the Optionee’s Trust containing dispositive provisions or the person or persons to whom an Option granted hereunder shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options for one year and to the extent of the full amount of the shares subject to such Options ( i.e., all Options will be deemed exercisable). |
| (d) |
For purposes of this Section 5.5, the terms “disability” and “disabled” shall mean the inability of the Optionee by reason of illness or physical or mental disability to perform the director duties required of the Optionee (as determined by the Company) for a period of 90 consecutive days. |
| (e) |
No transfer of an Option by the Optionee by will or by the laws of descent and distribution shall be effective to bind the Company and its Subsidiaries unless the Company shall have been furnished with written notice thereof and an authenticated copy of the will and/or such other evidence as the Company may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions of such Option. |
3. Effect of Amendment . The foregoing Amendment shall be effective as of January 1, 2012 and applicable to all Options outstanding as of that date and Options granted by the Company following that date. The foregoing Amendment is also subject to the approval by the shareholders of the Company on or before December 31, 2012. Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
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GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. |
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO. 5 TO GATEWAY FINANCIAL HOLDINGS, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 5 TO THE GATEWAY FINANCIAL HOLDINGS, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made as of the 13 th day of June, 2014.
W I T N E S S E T H T H A T:
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company desires to amend the Plan in certain respects.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. Defined Terms . All terms used in this Amendment which are defined in the Plan shall have the meanings specified in the Plan, unless specifically defined herein.
2. Amendment of Section 5.3 . Section 5.3 of the Plan shall be amended by deleting the first sentence of the last paragraph in its entirety and inserting the following in lieu thereof:
Notwithstanding any other provision in this Plan, no option granted under the Plan may be exercised more than fifteen (15) years after the date on which it is granted.
3. Effect of Amendment . Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer thereunto duly authorized, all as of the date first above written.
| GATEWAY FINANCIAL HOLDINGS, INC. | ||
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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AMENDMENT NO. 6 TO GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC.
DIRECTORS’ STOCK OPTION PLAN
THIS AMENDMENT NO. 6 TO THE GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. DIRECTORS’ STOCK OPTION PLAN (the “Amendment”) is made as of the 26 th day of April, 2017 (the “Amendment Date”).
WHEREAS, the Board of Directors and the shareholders of Gateway Financial Holdings of Florida, Inc. (the “Company”) have authorized, adopted and approved a Directors’ Stock Option Plan, as amended (the “Plan”); and
WHEREAS, the Company now desires to amend the Plan.
NOW THEREFORE, the Plan is hereby amended as follows:
| 1. |
Amendment of Section 5.5(a) . Section 5.5(a) of the Plan, as amended by Amendment No. 4 as of the 1 st day of January 2012, is hereby deleted in its entirety and replaced with the following: |
“(a) If an Optionee’s Service with the Company and its Subsidiaries shall be terminated for any reason other than (i) death, (ii) disability, or (iii) by the Company as a result of a Bank Subsidiary Merger (and where the Optionee has at least two years of Service with the Company or its Subsidiaries prior to the closing of such Bank Subsidiary Merger), then the Optionee or personal representative or administrator of the estate of the Optionee or the successor trustee of the Optionee’s trust containing dispositive provisions or the person or persons to whom an Option was granted shall have been validly transferred by the personal representative or administrator pursuant to the Optionee’s will or the laws of descent and distribution, as the case may be, shall have the right to exercise the Optionee’s Options until the earlier of (i) January 31, 2020 or (ii) the stated expiration date of each such Option.”
| 2. |
Defined Terms . Each capitalized term not otherwise defined in this Amendment shall have the definition ascribed to such term in the Plan. |
| 3. |
Effect of Amendment . The foregoing Amendment shall be effective as of the Amendment Date and applicable to all Options outstanding as of that date and Options granted by the Company following that date. The foregoing Amendment is also subject to the approval by the shareholders of the Company. Except as expressly modified by this Amendment, the terms, covenants, and conditions of the Plan shall remain in full force and effect. |
IN WITNESS WHEREOF, the Company has caused this Amendment to be duly executed by its officer, as of the Amendment Date.
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GATEWAY FINANCIAL HOLDINGS OF FLORIDA, INC. |
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By: |
/s/ David K. Maholias |
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David K. Maholias |
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President and Chief Executive Officer |
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Centerstate Banks, Inc. of our report dated March 2, 2017, with respect to the consolidated financial statements of CenterState Banks, Inc., and effectiveness of internal control over financial reporting, which appears in the Annual Report on Form 10-K of Centerstate Banks, Inc. for the year ended December 31, 2016.
/s/ Crowe Horwath LLP
Fort Lauderdale, Florida
May 1, 2017