Exhibit 10.4
AMENDED 1996 EMPLOYEE STOCK
OPTION PLAN OF
PENNSYLVANIA COMMERCE BANCORP,
INC. **
The purpose of
this Plan is to enable Pennsylvania Commerce Bancorp, Inc.
(hereinafter referred to as “Commerce”) to continue to
compete successfully in attracting and retaining key employees with
outstanding abilities by making it possible for them to purchase
shares of Commerce's common stock on terms which will give them a
more direct and continuing interest in the future success of
Commerce.
"
Commerce " means Pennsylvania Commerce Bancorp, Inc., a
Pennsylvania Corporation and bank holding company.
" Board
" means the Board of Directors of Commerce.
"
Committee " means a committee established by the
Board. The Committee shall consist of three or more
members of the Board. No member of the Committee may
receive Options under the Plan. The Personnel Committee
may be the Committee if it meets these qualifications.
"
Employees " means employees’, including officers,
regularly employed on a salary basis by
Commerce. “Employment with Commerce”, or
words to that effect, shall include employment by any subsidiary or
affiliate of Commerce.
“ Fair
Market Value ” of a share of Commerce's common stock
shall mean its closing sale price on the principal stock exchange
on which the stock is traded on the date as of which the value is
being determined. If there is no reported sale on that
date, the Fair Market Value shall be the closing sale on the next
preceding day for which a sale was reported. However,
the Committee, in the good faith exercise of its discretion, may
determine that the closing sale price does not reflect the true
Fair Market Value of a share of common stock. If it so
determines, the Fair Market Value shall be the average closing sale
price on the principal stock exchange on which Commerce's common
stock is traded during the twenty (20) day period immediately
preceding the date on which Fair Market Value is being
determined.
“
ISO ” means an incentive stock option described in
Section 422 of the Internal Revenue Code of 1986, as
amended.
“
NQSO ” means a stock option, which is not described in
Section 422 of the Internal Revenue Code of 1986, as
amended.
“
Option ” means an option, either in the form of an ISO
or NSQO, granted in accordance with the terms of this
Plan.
"
Optionee " means a person to whom an option has been granted
under this Plan, which has not expired or been fully exercised or
surrendered.
" Shares
" means shares of common stock of Commerce.
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Limits on
Number of Shares
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The total
number of Shares for which Options may be granted under this Plan
shall not exceed in the aggregate 527,369 Shares. This
number shall be appropriately adjusted if the number of issued
Shares shall be increased or reduced by change in par value,
combination, or split-up, reclassification, distribution of a
dividend payable in stock, or the like. Shares covered
by Options, which have expired, or which have been surrendered may
again be optioned under this Plan. Options may be
granted in the form of ISOs or NQSOs.
The number of
Shares optioned from time to time to individual Optionees under the
Plan, and the Option prices therefore, shall be appropriately
adjusted to reflect any changes in par value, combination,
split-up, reclassification, distribution of dividend payable in
stock, or the like.
The Board, or
if the Board so determines, the Committee, is authorized to grant
Options to selected employees pursuant to this Plan during the
calendar year 1996 and in any calendar year thereafter to December
31, 2005. The number of Shares, if any, optioned in each
year, the employees to whom Options are granted, and the number of
Shares optioned to each employee selected shall be wholly within
the discretion of the Board or the Committee. The Board
may grant both ISOs and NQSOs to the same
employee. Board action on Options and administration of
this Plan shall be only upon the advice and recommendation of the
Committee if the Board has appointed a Committee.
ISOs granted
under this Plan shall contain the following terms:
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The ISO price
shall be fixed by the Board or the Committee but shall in no event
be less than 100% of the fair market value of the Shares subject to
the ISO on the date the ISO is granted. The ISO price,
in the case of an Optionee who, at the time the Option is granted,
owns more than 10% of the outstanding Shares of Commerce's common
stock shall be at least 110% of the fair market value of the Shares
subject to the ISO on the date the ISO is granted.
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ISOs shall not
be transferable otherwise than by will or by the laws of descent
and distribution. No ISO shall be subject, in whole or
in part, to attachment, execution or levy of any kind.
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Each ISO shall
expire and all rights under the ISO shall end at the expiration of
the exercise period for the ISO, which shall in no event be
extended beyond its original term and shall not be more than ten
years after the date on which it was granted. Provided,
however, that in the case of an Optionee who, at the time the
Option is granted, owns more than 10% of the outstanding shares of
Commerce's common stock, ISOs shall expire no more than five years
after the date on which the ISO was granted.
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ISOs shall be
exercisable only by the Optionee during the Optionee’s
lifetime. ISOs may be exercised only while employed by
Commerce or within (i) three years after retirement, or (ii) three
months after termination of employment (but in any event not later
than the end of the period fixed by the Board or the Committee of
the Board in accordance with the provisions of paragraph (c) of
Section 6. An ISO is exercisable by retired or
terminated Optionees only to the extent the ISO was exercisable by
the Optionee on the last day of his or her employment with
Commerce. For purposes of this paragraph (d), retirement
shall mean termination of employment by an Optionee who has
attained age 62. If an Optionee retires due to
disability, the ISOs granted to the Optionee shall be exercisable
within 12 months of the date of retirement (but in any event not
later than the end of the period fixed by the Board or the
Committee of the Board in accordance with the provisions of
paragraph (c) of this Section 6.
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If an Optionee
dies within a period during which an ISO could have been exercised
by the Optionee, the ISO may be exercised within three years after
the Optione
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