Exhibit 10.4
Guaranty
Federal Savings Bank
Restricted Stock
Plan
and Trust
Agreement
Article
I
ESTABLISHMENT OF THE PLAN
AND TRUST
1.01 Guaranty
Federal Savings Bank ("Savings Bank") hereby establishes the
Restricted Stock
Plan (the
"Plan") and Trust (the "Trust") upon the terms and conditions
hereinafter stated in this Restricted
Stock Plan and
Trust Agreement (the "Agreement").
1.02 The
Trustee hereby accepts this Trust and agrees to hold the Trust
assets existing on the
date of this
Agreement and all additions and accretions thereto upon the terms
and conditions hereinafter
stated.
Article
II
PURPOSE OF THE
PLAN
2.01 The
purpose of the Plan is to reward and to retain personnel of
experience and ability in
key positions
of responsibility with the Savings Bank and its subsidiaries, by
providing such personnel of
the Savings
Bank and its subsidiaries with an equity interest in the parent
corporation of the Savings Bank,
Guaranty
Federal Bancshares, Inc. ("Parent"), as compensation for their
prior and anticipated future
professional
contributions and service to the Savings Bank and its
subsidiaries.
Article
III
DEFINITIONS
The following
words and phrases when used in this Plan with an initial capital
letter, unless the
context clearly
indicates otherwise, shall have the meaning as set forth below.
Wherever appropriate, the
masculine
pronoun shall include the feminine pronoun and the singular shall
include the plural.
3.01
"Beneficiary" means the person or persons designated by the
Participant to receive any
benefits
payable under the Plan in the event of such Participant's death.
Such person or persons shall be
designated in
writing on forms provided for this purpose by the Committee and may
be changed from time
to time by
similar written notice to the Committee. In the absence of a
written designation, the Beneficiary
shall be the
Participant's surviving spouse, if any, or if none, the
Participant's estate.
3.02 "Board"
means the Board of Directors of the Savings Bank, or any successor
corporation
thereto.
3.03 "Cause"
means the personal dishonesty, incompetence, willful misconduct,
breach of
fiduciary duty
involving personal profits, intentional failure to perform stated
duties, willful violation of
a material
provision of any law, rule or regulation (other than traffic
violations and similar offense), or a
material
violation of a final cease-and-desist order or any other action
which results in a substantial financial
loss to the
Parent, Savings Bank or its Subsidiaries.
3.04 "Change in
Control" shall mean: (i) the sale of all, or a material portion, of
the assets of
the Parent or
Savings Bank; (ii) the merger or recapitalization of the Parent or
the Savings Bank whereby
the Parent or
Savings Bank is not the surviving entity; (iii) a change in control
of the Parent or Savings
Bank, as
otherwise defined or determined by the Office of Thrift Supervision
("OTS") or regulations
promulgated by
it; or (iv) the acquisition, directly or indirectly, of the
beneficial ownership (within the
meaning of that
term as it is used in Section 13(d) of the 1934 Act and the rules
and regulations
promulgated
thereunder) of twenty-five percent (25%) or more of the outstanding
voting securities of the
Parent or
Savings Bank by any person, trust, entity or group. This limitation
shall not apply to the
purchase of
shares of up to 25% of any class of securities of the Parent or
Savings Bank by a tax-qualified
employee stock
benefit plan which is exempt from the approval requirements, set
forth under 12 C.F.R.
§574.3(c)(1)(vi) as now in effect or
as may hereafter be amended. The term "person" refers to
an
individual or a
corporation, partnership, trust, association, joint venture, pool,
syndicate, sole
proprietorship,
unincorporated organization or any other form of entity not
specifically listed herein. The
decision of the
Committee as to whether a Change in Control has occurred shall be
conclusive and binding.
3.05
"Committee" means the Board of Directors of the Parent or the
Restricted Stock Plan
Committee
appointed by the Board of Directors of the Parent pursuant to
Article IV hereof.
3.06 "Common
Stock" means shares of the common stock of the Savings Bank or any
successor
corporation or
Parent thereto.
3.07
"Conversion" means the effective date of the stock charter of the
Savings Bank and
simultaneous
acquisition of all of the outstanding stock of the Savings Bank by
the Parent.
3.08 "Director"
means a member of the Board of the Savings Bank.
3.09 "Director
Emeritus" means a person serving as a director emeritus, advisory
director,
consulting
director, or other similar position as may be appointed by the
Board of Directors of the Savings
Bank or the
Parent from time to time.
3.10
"Disability" means any physical or mental impairment which renders
the Participant
incapable of
continuing in the employment or service of the Savings Bank or the
Parent in his current
capacity as
determined by the Committee.
3.11 "Employee"
means any person who is employed by the Savings Bank or a
Subsidiary.
3.12 "Effective
Date" shall mean the date of stockholder approval of the Plan by
the Parent's
stockholders.
3.13 "Parent"
shall mean Guaranty Federal Bancshares, Inc., the parent
corporation of the
Savings
Bank.
3.14
"Participant" means an Employee, Director or Director Emeritus who
receives a Plan Share
Award under the
Plan.
3.15 "Plan
Shares" means shares of Common Stock held in the Trust which are
awarded or
issuable to a
Participant pursuant to the Plan.
3.16 "Plan
Share Award" or "Award" means a right granted to a Participant
under this Plan to
earn or to
receive Plan Shares.
3.17 "Plan
Share Reserve" means the shares of Common Stock held by the Trust
pursuant to
Sections 5.03
and 5.04.
3.18 "Savings
Bank" means Guaranty Federal Savings Bank, and any successor
corporation
thereto.
3.19
"Subsidiary" means those subsidiaries of the Savings Bank which,
with the consent of the
Board, agree to
participate in this Plan.
3.20 "Trustee"
or "Trustee Committee" means that person(s) or entity nominated by
the
Committee and
approved by the Board pursuant to Sections 4.01 and 4.02 to hold
legal title to the Plan
assets for the
purposes set forth herein.
Article
IV
ADMINISTRATION OF THE
PLAN
4.01
Role of the Committee. The Plan shall be
administered and interpreted by the Board of
Directors of
the Parent or a Committee appointed by said Board, which shall
consist of not less than two
non-employee
members of the Board, which shall have all of the powers allocated
to it in this and other
sections of the
Plan. All persons designated as members of the Committee shall be
"Non-Employee
Directors"
within the meaning of Rule 16b-3 under the Securities Exchange Act
of 1934, as amended
("1934 Act").
The interpretation and construction by the Committee of any
provisions of the Plan or of
any Plan Share
Award granted hereunder shall be final and binding. The Committee
shall act by vote or
written consent
of a majority of its members. Subject to the express provisions and
limitations of the Plan,
the Committee
may adopt such rules, regulations and procedures as it deems
appropriate for the conduct
of its affairs.
The Committee shall report its actions and decisions with respect
to the Plan to the Board
at appropriate
times, but in no event less than one time per calendar year. The
Committee shall recommend
to the Board
one or more persons or entity to act as Trustee in accordance with
the provision of this Plan
and Trust and
the terms of Article VIII hereof.
4.02
Role of the Board. The members of the Committee
and the Trustee shall be appointed or
approved by,
and will serve at the pleasure of the Board. The Board may in its
discretion from time to time
remove members
from, or add members to, the Committee, and may remove, replace or
add Trustees. The
Board shall
have all of the powers allocated to it in this and other sections
of the Plan, may take any action
under or with
respect to the Plan which the Committee is authorized to take, and
may reverse or override
any action
taken or decision made by the Committee under or with respect to
the Plan, provided, however,
that the Board
may not revoke any Plan Share Award already made except as provided
in Section 7.01(b)
herein.
4.03
Limitation on Liability. No member of the Board,
the Committee or the Trustee shall be
liable for any
determination made in good faith with respect to the Plan or any
Plan Share Awards granted.
If a member of
the Board, Committee or any Trustee is a party or is threatened to
be made a party to any
threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or
investigative,
by any reason of anything done or not done by him in such capacity
under or with respect
to the Plan,
the Parent and the Savings Bank shall indemnify such member against
expenses (including
attorney's
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him
or her in
connection with such action, suit or proceeding if he or she acted
in good faith and in a manner
he or she
reasonably believed to be in the best interests of the Parent, the
Savings Bank and its Subsidiaries
and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was
unlawful.
Notwithstanding anything herein to the contrary, in no event shall
the Savings Bank take any
actions with
respect to this Section 4.03 which is not in compliance with the
limitations or requirements
set forth at 12
CFR 545.121, as may be amended from time to time.
Article
V
CONTRIBUTIONS; PLAN SHARE
RESERVE
5.01
Amount and Timing of Contributions. The Board of
Directors of the Savings Bank shall
determine the
amounts (or the method of computing the amounts) to be contributed
by the Savings Bank
to the Trust
established under this Plan. Such amounts shall be paid to the
Trustee at the time of
contribution.
No contributions to the Trust by Participants shall be permitted
except with respect to
amounts
necessary to meet tax withholding obligations.
5.02
Initial Investment. Any funds held by the Trust
prior to investment in the Common Stock
shall be
invested by the Trustee in such interest-bearing account or
accounts at the Savings Bank as the
Trustee shall
determine to be appropriate.
5.03
Investment of Trust Assets. Following approval of
the Plan by stockholders of the Parent
and receipt of
any other necessary regulatory approvals, the Trust shall purchase
Common Stock of the
Parent in an
amount equal to up to 100% of the Trust's assets, after providing
for any required withholding
as needed for
tax purposes, provided, however, that the Trust shall not purchase
more than 173,632 shares
of Common
Stock, representing 4% of the aggregate shares of Common Stock
issued by the Parent in the
Conversion. The
Trustee may purchase shares of Common Stock in the open market or,
in the alternative,
may purchase
authorized but unissued shares of the Common Stock or treasury
shares from the Parent
sufficient to
fund the Plan Share Reserve.
5.04
Effect of Allocations, Returns and Forfeitures Upon Plan
Share Reserves. Upon the
allocation of
Plan Share Awards under Sections 6.02 and 6.05, or the decision of
the Committee to return
Plan Shares to
the Parent, the Plan Share Reserve shall be reduced by the number
of Shares subject to the
Awards so
allocated or returned. Any Shares subject to an Award which are not
earned because of
forfeiture by
the Participant pursuant to Section 7.01 shall be added to the Plan
Share Reserve.
Article
VI
ELIGIBILITY;
ALLOCATIONS
6.01
Eligibility. Employees and Directors Emeritus are
eligible to receive Plan Share Awards
within the sole
discretion of the Committee. Directors who are not otherwise
Employees shall receive Plan
Share Awards
pursuant to Section 6.05.
6.02
Allocations. The Committee will determine which of
the Employees will be granted Plan
Share Awards
and the number of Shares covered by each Award, provided, however,
that in no event shall
any Awards be
made which will violate the Charter or Bylaws of the Savings Bank
or its Parent or
Subsidiaries or
any applicable federal or state law or regulation. In the event
Shares are forfeited for any
reason or
additional Shares are purchased by the Trustee, the Committee may,
from time to time, determine
which of the
Employees will be granted Plan Share Awards to be awarded from
forfeited Shares. In
selecting those
Employees and Directors Emeritus to whom Plan Share Awards will be
granted and the
number of
shares covered by such Awards, the Committee shall consider the
prior and anticipated future
position,
duties and responsibilities of the Employees, the value of their
prior and anticipated future services
to the Savings
Bank and its Subsidiaries, and any other factors the
