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EXHIBIT 10.23(C)
EMPLOYMENT AGREEMENT
AGREEMENT made as of January 10, 2000 between RESOURCE BANCSHARES
MORTGAGE GROUP, INC. ("RMBG") and Douglas K. Freeman ("Employee").
WITNESSETH:
WHEREAS, the parties hereto desire to provide for the Employee's
employment by RBMG.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Employment.
RBMG agrees to employ the Employee and the Employee agrees to
enter into the employ of RMBG on the terms and conditions hereafter set forth.
2. Capacity and Duties.
The Employee shall be employed as the Chief Executive Officer
of RMBG. In addition, the Employee shall upon request serve as an officer and on
the Board of Directors of such subsidiaries as the Board of Directors of RBMG
may from time to time designate. The Employee shall perform his responsibilities
in accordance with the direction and supervision of the Board of Directors of
RBMG and he shall devote his full business time, skill, energies, business
judgment, knowledge and best efforts to the advancement of the best interests of
RBMG and the performance of such executive, administrative and operational
duties on behalf of RBMG and its subsidiaries, appropriate to the offices he
holds or shall hold hereunder, as the Board of Directors of RBMG may assign. The
requirement that the Employee devote his full business time shall not be
construed to prevent the Employee from making investments in stocks, bonds and
other types of personal property, both tangible and intangible, and real estate
or engaging in church, charitable, professional, or other community activities
or serving as a member of a board of directors which do not, singly or in the
aggregate, materially impair his ability to fulfill his responsibilities under
this Agreement; provided, however, that serving as a member of the board of
directors of a business enterprise shall require the prior approval of RBMG's
Board of Directors.
3. Term.
The term of the Employee's employment hereunder shall be for
the period commencing on January 10, 2000 (the "Commencement Date") and ending
on December 31, 2001, unless such term is terminated earlier by or pursuant to
Section 5.
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4. Compensation and Benefits.
(a) Salary. RBMG shall pay or cause to be paid to the
Employee, as compensation for all of the services to be rendered by him
hereunder during the term hereof, a salary of $500,000 per year ("Base
Salary"), payable in accordance with the regular payroll practices of
RBMG for executives, less such deductions or amounts as are required to
be deducted or withheld by applicable laws or regulations and less such
other deductions or amounts, if any, as are authorized by the Employee;
provided, however, that the Employee shall receive his first paycheck
on or about September 15, 2000 and it shall be in the gross amount of
$341,666.67.
(b) Annual Bonus. The Employee's annual bonus opportunity will
be $300,000. The amount of the bonus for 2000 will be determined based
on achievement of specified goals which are to be defined on or before
March 1, 2000.
(c) Expenses. To the extent not otherwise paid for by RBMG or
one of its subsidiaries, RBMG will reimburse the Employee or cause the
Employee to be reimbursed for reasonable expenses incurred in promoting
RBMG's and its subsidiaries' businesses, including expenses for travel
and entertainment, such reimbursement to be made promptly upon
presentation of appropriate receipts or other substantiation.
(d) Plans. The Employee shall be entitled to participate in
any and all employee benefit plans as may be in effect for executives
of RBMG to the extent that he is eligible for participation therein and
coverage thereunder. Such right of participation in any such plan and
the degree or amount thereof shall be subject, however, to generally
applicable RBMG policies and to action by RBMG's Board of Directors or
any administrative or other committee or to any other administrative or
managerial determination provided in or contemplated by such plan, it
being agreed that this Agreement is not intended to impair the right of
any committee or other group or person concerned with the
administration of such plan to exercise in good faith the full
discretion reposed in him or them by such plan.
(e) Vacation. The Employee shall be entitled to paid vacation
during each year of this Agreement in accordance with the policies of
RBMG with respect thereto applicable to officers with comparable duties
and responsibilities. Unused vacation time in any year shall not be
carried over to subsequent years and the Employee shall not be entitled
under this Agreement to pay in lieu of unused vacation time.
(f) Withholding. The Employee acknowledges that certain
payments provided for herein are subject to withholding and other
taxes.
(g) Purchase of Stock. RBMG hereby sells, assigns and
transfers to the Employee, and the Employee hereby purchases and
accepts from RBMG, 100,000 shares of RBMG Common Stock at a price of
$4.49 per share. The Employee shall pay for such shares by good check
to be delivered to RBMG on or before January 12, 2000. The Employee
agrees not to sell, transfer, pledge or otherwise encumber such shares
prior to
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January 1, 2002 unless there is a Change of Control (hereinafter
defined) of RBMG or the Employee's employment with RBMG is terminated
pursuant to Section 5(a) or Section 5(b) or by RBMG without "cause" as
specified in Section 5(c).
(h) Omnibus Stock Award Plan. In consideration of the payment
by the Employee to the Corporation of $1,000.00 and of the Employee's
other covenants contained in this Agreement, RBMG hereby awards to the
Employee 100,000 shares of RBMG Common Stock pursuant to RBMG's Omnibus
Stock Award Plan, as amended (the "Plan"). Such shares shall be deemed
to be unrestricted stock under the Plan. The Employee shall make an
election under Section 83(b) of the Internal Revenue Code of 1986, as
amended, with respect to such shares and shall be responsible for all
taxes on the award of such shares. Within 10 days prior to making the
Section 83(b) election, the Employee shall pay to RBMG the amount of
any federal, state or local income tax withholding or other employment
tax with respect to the shares. The determination of the amount of any
federal, state or local income tax withholding or other employment tax
due in such event shall be made by RBMG in accordance with applicable
laws and regulations and shall be binding upon the Employee. Except as
provided in the following sentence, the Employee agrees not to sell,
transfer, pledge or otherwise encumber such shares prior to January 1,
2002 unless there is a Change of Control of RBMG or the Employee's
employment with RBMG is terminated pursuant to Section 5(a) or Section
5(b) or by RBMG without "cause" as specified in Section 5(c). If the
Employee's employment with RBMG ceases prior to December 31, 2001 for
any reason other than as provided in Section 5(a), 5(b) or 5(d), the
Employee shall sell, assign and transfer such shares to RBMG, and RBMG
shall purchase and accept such shares from the Employee, for an amount
equal to the federal and state income taxes paid by the Employee as a
result of the award of such shares plus any taxes payable by the
Employee and any reasonable costs and expenses of the Employee arising
from RBMG's purchase of such shares.
(i) Stock Options. The Employee has been awarded an option to
acquire one hundred thousand (100,000) shares of Common Stock of RBMG
pursuant to the terms and conditions of the Incentive Stock Option
Agreement between the Employee and RBMG dated as of the date of this
Agreement.
(j) Provisions Relating to Common Stock. All stock
certificates evidencing the shares referred to in Sections 4(g) and (h)
shall bear the following legend:
The transfer or encumbrance of the shares of Common Stock
represented by this certificate is restricted under the terms
of an Employment Agreement dated January 10, 2000, a copy of
which Employment Agreement is on file at the principal office
of Resource Bancshares Mortgage Group, Inc.
Notwithstanding the transfer restrictions and other provisions herein
applicable to the shares of Common Stock referred to in Sections 4(g)
and (h), the Employee shall have the entire beneficial interest of such
shares and, subject to this Agreement, shall be entitled to
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exercise the rights and privileges of a stockholder with respect to
such shares, including the right to receive dividends and the right to
vote such shares. The Employee hereby represents to RBMG that he is
acquiring the shares for his own account and not with a view to the
distribution thereof. The Employee agrees that none of the shares will
be sold, transferred or otherwise disposed of unless (i) a registration
statement under the Securities Act of 1933, as amended (the "Act"),
shall at the time of disposition be effective with respect to such
shares or (ii) RBMG shall have receive an opinion of counsel or other
information and representations satisfactory to it to the effect that
registration under the Act is not required, by reason of the
application of Rule 144 or otherwise, for such sale, transfer or other
disposition.
5. Termination.
Notwithstanding Section 3, the term of the Employee's
employment hereunder shall terminate on the first to occur of the (i)
termination date provided for under Section 3 or (ii) any of the events
described in the paragraphs of this Section 5.
(a) Death. In the event of the Employee's death, the
Employee's employment shall terminate automatically, effective as of
the date of death, and RBMG shall pay to his estate the Base Salary
that otherwise would have been paid or accrued to the Employee pursuant
to Section 4(a) up to the end of the fiscal quarter in which he died.
(b) Disability. If the Employee, due to physical or mental
illness, shall be disabled to perform substantially all of his duties
for a continuous period of three months (a "disability"), then either
the Employee or RBMG may by notice terminate the Employee's employment
under this Agreement effective as of a date 30 days after the date such
notice is given. The Employee's Base Salary during the period prior to
such termination shall be reduced by the amount of any disability or
similar benefits to which he is entitled, notwithstanding anything
contained elsewhere in this Agreement to the contrary.
(c) Termination for Cause. The Employee's employment may be
terminated effective immediately by RBMG for "cause" by notice of
termination to the Employee. "Cause" for such termination shall be
limited to the following:
(i) Breach by the Employee in any material respect of
any of the material covenants contained in this Agreement,
which breach continues for 30 days following receipt of
written notice given by RBMG's Board of Directors specifying
the breach and requesting that the Employee correct the same;
(ii) Chronic and disabling use of alcohol or
controlled substances that materially inhibits the performance
of the Employee's duties under this Agreement for a period of
not less than three consecutive months;
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(iii) The Employee's conviction of either a felony
involving moral turpitude or any crime in connection with his
employment by RBMG which causes RBMG a substantial detriment;
(iv) Gross or willful neglect of the Employee's
duties; or
(v) Such conduct as results or as is likely to result
in substantial damage to the reputation of RBMG or any of the
affiliates of RBMG.
(d) Change of Control. RBMG and the Employee are entering into
a Change of Control Agreement simultaneous with the execution of this
Agreement. Such Change of Control Agreement permits the Employee to
terminate his employment under certain circumstances. As used in this
Agreement, the term "Change of Control" shall have the meaning ascribed
thereto in the Change of Control Agreement.
(e) Compensation Upon Termination. Except as provided in
Sections 5(a) and 5(b) and the Change of Control Agreement referred to
in Section 5(d), all compensation to the Employee shall cease
immediately on termination of the Employee's employment hereunder.
6. No Raid.
The Employee acknowledges that he has had and will have
extensive contacts with employees and customers of, and others having business
dealings with, RBMG. For the purposes of this Section and Sections 7, 8 and 9,
the term "RBMG" shall be deemed to include subsidiaries, parents and affiliates
of RBMG. Accordingly, the Employee covenants and agrees that during the term of
his employment and during the two-year period immediately thereafter he will not
(i) solicit any of the employees of RBMG who were employed by RBMG during the
time when the Employee was employed by RBMG to leave RBMG, (ii) interfere with
the relationship of RBMG with any such employees or (iii) personally target or
solicit to the detriment of RBMG any customers or others having business
dealings with RBMG in the business activities and endeavors in which the
Employee was involved. The Employee further covenants and agrees that during the
term of his employment and during the two-year period immediately thereafter he
will not make public statements in derogation of RBMG.
7. Blue Pencil.
The Employee acknowledges that the period of restriction
imposed by Section 6 is fair and reasonable and is reasonably required for the
protection of RBMG. If any part or parts of Section 6 shall be held to be
unenforceable or invalid, then the remaining parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid portion or portions
were not a part hereof. If any of the provisions of Section 6 relating to the
period of restriction shall be deemed to exceed the maximum period of time which
a court of competent jurisdiction would deem enforceable, then the time shall,
for the purposes of Section 6, be deemed to be the maximum time period which a
court of competent jurisdiction would deem valid and enforceable in any state in
which such court of competent jurisdiction shall be convened.
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8. Confidentiality.
The Employee acknowledges that he has had and will have access
to certain information related to the business, operations, future plans and
customers of RBMG, the disclosure or use of which could cause RBMG substantial
losses and damages. Accordingly, the Employee covenants that during the term of
his employment with RBMG and for three years thereafter he will keep
confidential all information and documents furnished to him by or on behalf of
RBMG and not use the same to his advantage, except to the extent such
information or documents are or thereafter become lawfully obtainable from other
sources or are in the public domain through no fault on his part or as is
consented to in writing by RBMG. Upon termination of his employment, the
Employee shall return to RBMG all records, lists, files and documents which are
in his possession and which relate to RBMG.
9. Right to Injunctive Relief.
The Employee agrees and acknowledges that a violation of the
covenants contained in Sections 6 and 8 of this Agreement will cause irreparable
damage to RBMG, and that it is and will be impossible to estimate or determine
the damage that will be suffered by RBMG in the event of a breach by the
Employee of any such covenant. Therefore, the Employee further agrees that in
the event of any violation or threatened violation of such covenants, RBMG shall
be entitled as a matter of course to an injunction issued by any court of
competent jurisdiction restraining such violation or threatened violation by the
Employee, such right to an injunction to be cumulative and in addition to
whatever other remedies RBMG may have.
10. Representation by the Employee.
The Employee hereby represents and warrants to RBMG that the
execution of this Agreement and the performance of his duties and obligations
hereunder will not breach or be in conflict with any other agreement to which he
is a party or by which he is bound and that he is not now subject to any
covenant against competition or similar covenant that would affect the
performance of his duties hereunder.
11. No Assignment.
This Agreement is personal and shall in no way be subject to
assignment, except by RBMG incident to the sale of all or substantially all of
its business (whether by asset sale, stock sale or merger). Any attempt by one
party to assign this Agreement in any other circumstances without the prior
written consent of the other party shall be null and void.
12. Enforceability.
If any portion or provision of this Agreement shall to any
extent be declared illegal or unenforceable by a duly authorized court of
competent jurisdiction, then the remainder of this Agreement, or the application
of such portion or provision in circumstances other than
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those as to which it is so declared illegal or unenforceable, shall not be
affected thereby, and each portion and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
13. Notices.
All notices and other communications required or permitted to
be given hereunder shall be given by delivering the same in hand or by mailing
the same by certified or registered mail, return receipt requested, postage
prepaid, as follows:
if to RBMG, to:
Resource Bancshares Mortgage Group, Inc.
7909 Parklane Road
Columbia, South Carolina 29202-7486
Attention: Corporate Secretary
if to the Employee, to:
Mr. Douglas K. Freeman
4934 Morven Road
Jacksonville, Florida 32210
(or to such other address as either party shall have furnished
to the other by like notice)
A notice shall be effective as of the date of such delivery or
mailing, as the case may be.
14. Entire Agreement.
This Agreement constitutes the only agreement and
understanding (other than the Change of Control Agreement referred to in Section
5(d), stock option agreements and employee benefit plans, indemnification
agreements and policies and practices applicable to RBMG's executive officers
generally, each of which shall, except as otherwise specifically provided in
this Agreement, be interpreted and construed independently of this Agreement)
between RBMG, on the one hand, and the Employee, on the other hand, in relation
to the subject of the Employee's employment by RBMG, and there are no promises,
representations, conditions, provisions or terms related thereto other than
those set forth herein. This Agreement supersedes all previous understandings,
agreements and representations, written or oral, between RBMG and the Employee
regarding the Employee's employment by RBMG.
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15. Governing Law.
This contract shall be construed under and be governed in all
respects by the internal laws, and not the laws pertaining to choice or
conflicts of laws, of the State of South Carolina.
16. Waiver; Amendment.
No waiver in any instance by either party of any provision of
this Agreement shall be deemed a waiver by such party of such provision in any
other instance or a waiver of any other provision hereunder in any instance.
This Agreement cannot be amended, supplemented or otherwise modified except in a
writing signed by RBMG and the Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
By: __________________________________
Name: __________________________________
Title: __________________________________
EMPLOYEE:
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Douglas K. Freeman
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