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Exhibit 10.55
MSC STOCK OPTION AGREEMENT
This MSC Stock Option Agreement (the "Option Agreement") is entered
into as of the 2nd day of February, 2000, between Resource Bancshares Mortgage
Group, Inc., a Delaware corporation (the "Company"), and Boyd M. Guttery (the
"Optionee").
1. Definitions.
Throughout this Option Agreement, the following terms shall
have the meanings indicated:
(a) "Change of Control" shall mean:
(A) The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (i) the then outstanding shares of
Common Stock (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
subsection (A), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly
from the Company, (ii) any acquisition by the Company, (iii)
any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iv) any acquisition
by any corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (C) of this
paragraph 1(a); or
(B) Individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute at least
a majority of the Board of Directors of the Company; provided,
however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors of the Company; or
(C) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company or the
acquisition of assets of another corporation (a "Business
Combination"), in each
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case, unless, following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively,
the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as
the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities entitled to vote generally in
the election of directors of such corporation except to the
extent that such ownership existed prior to the Business
Combination and (iii) at least a majority of the members of
the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board of Directors of the Company, providing for
such Business Combination; or
(D) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(c) "Common Stock" shall mean the Common Stock, par value $.01
per share, of the Company.
(d) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) "Exercise Date" shall have the meaning indicated in
paragraph 3 hereof.
(f) "Fair Market Value" shall mean, with respect to the Common
Stock on any day, the closing sales price of a share of Common Stock
for the immediately preceding day or, if the principal market for
trading the Common Stock is not open or if no closing sales price of a
share of Common Stock is available on that day, the closing sales price
of a share of Common Stock for the day most immediately preceding that
day for which a closing sales price is available. The market value of
the Option on any day shall be the market
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value of the underlying Common Stock, determined as aforesaid, less the
exercise price of the Option.
(g) "Notice" shall have the meaning indicated in paragraph 3
hereof.
(h) "Option" shall have the meaning indicated in paragraph 2
hereof.
(i) "Option Period" shall mean the period commencing on the
date of this Option Agreement and ending at the close of the Company's
business ten years from the date hereof.
(j) "Option Shares" shall have the meaning indicated in
paragraph 2 hereof.
(k) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(l) "Total Option Price" shall have the meaning indicated in
paragraph 3 hereof.
2. Award of Option.
Effective upon the date hereof, and subject to the terms and
conditions set forth herein, the Company has awarded to the Optionee the option
(the "Option") to purchase from the Company, at an exercise price of $4.0625 per
share, up to but not exceeding in the aggregate 19,230 shares of the Common
Stock (the "Option Shares").
3. Exercise of Option
(a) The Option shall be exercisable, in whole or in part, at
any time and from time to time during the Option Period, but not
thereafter. The Option shall terminate on the expiration of the Option
Period, if not earlier terminated.
(b) No less than 100 shares of Common Stock may be purchased
upon any one exercise of the Option granted hereby unless the number of
shares purchased at such time is the total number of shares in respect
of which the Option is then exercisable.
(c) An Option shall not be exercisable for a fractional share;
provided that, if an Option for a fractional share results from an
event described in paragraph 7, then, upon exercise of such Option, the
Optionee shall receive the Fair Market Value of such fractional share
in cash.
(d) The Option shall be exercised by the Optionee by delivery
to the Secretary of the Company, on any business day during the Option
Period (the "Exercise Date"), of (i) a written notice specifying the
number of shares the Optionee then desires to purchase (the "Notice")
and (ii) cash or a check made payable to the order of the Company in an
aggregate amount in United States dollars equal to the exercise price
for the number of shares specified in the Notice (the "Total Option
Price"), or shares of Common Stock owned by the Optionee for a period
of six months with a Fair Market Value equal to the
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Total Option Price, or a combination thereof. In all cases, the Notice
shall state that the Optionee acknowledges that payment of the Total
Option Price is his absolute and personal liability enforceable by the
Company against him or his estate.
(e) Within 60 days after the Exercise Date, subject to the
receipt of payment of the Total Option Price and of any payment in cash
of federal, state or local income tax withholding or other employment
tax that may be due upon the issuance of the Option Shares as
determined and computed by the Company pursuant to paragraph 6, the
Company shall issue to the Optionee the number of shares with respect
to which such Option shall be so exercised and shall deliver to the
Optionee a certificate or certificates therefor.
(f) The Option is not transferable by the Optionee otherwise
than by will or the laws of descent or distribution or pursuant to a
qualified domestic relations order as defined in the Code. No
assignment or transfer of the Option, or of the rights represented
thereby, whether voluntary or involuntary, by operation of law or
otherwise, except by will or the laws of descent or distribution or
pursuant to a qualified domestic relations order as defined in the
Code, shall vest in the assignee or transferee any interest or right
whatsoever; but, immediately upon any attempt to assign or transfer the
Option, except as expressly permitted herein, the same shall terminate
and be of no force or effect.
4. Termination.
The Option evidenced hereby shall terminate immediately and
thereafter be of no force or effect upon and following the occurrence of any of
the following events:
(a) The expiration of the Option Period.
(b) The termination of the Optionee's status as a Director of
the Company incidental to conduct that, in the judgment of the Board of
Directors of the Company, involves conduct detrimental to the Company.
(c) The expiration of twelve months following the Optionee's
death. During such extended period, the Option may be exercised by the
person or persons to whom his or her rights under the Option shall pass
by will or by the laws of descent or distribution, but only to the
extent that the Option was exercisable on the date of the Optionee's
death.
(d) To the extent set forth in paragraph 7, in the event of
(i) a Change of Control of the type set forth in paragraph (C) of the
definition of Change of Control and (ii) the complete liquidation or
dissolution of the Company, and, to the extent set forth in
subparagraph 3(f), upon an attempted assignment or transfer of the
Option otherwise than as expressly permitted herein.
5. Rights as Stockholder.
An Optionee shall have no rights as a stockholder of the
Company with respect to any shares underlying the Option until the day of the
issuance of a stock certificate to him or her for
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those shares upon payment of the exercise price in accordance with the terms and
provisions hereof. Subject to paragraph 7, no adjustments shall be made for
dividends (whether ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued.
6. Payment of Withholding Taxes.
Upon the Optionee's exercise of his Option with respect to any
of the Option Shares in accordance with the provisions of paragraph 3, the
Optionee shall pay to the Company at the time of delivery of the Notice and the
Total Option Price the amount of any federal, state or local income tax
withholding or other employment tax that may be due upon the exercise of the
Option. The determination of the amount of any such federal, state or local
income tax withholding or other employment tax due in such event shall be made
by the Company and shall be binding upon the Optionee.
7. Recapitalization; Reorganization.
The shares underlying the Option are shares of Common Stock as
constituted on the date of this Option Agreement, but if, during the Option
Period and prior to the delivery by the Company of all of the shares of Common
Stock with respect to which this Option has been awarded, the Company shall
effect a subdivision or consolidation of shares or other capital readjustment,
the payment of a stock dividend or some other increase or decrease in the number
of shares of Common Stock outstanding without receiving compensation therefor in
money, services or property, then (a) in the event of any increase in the number
of such shares outstanding, the number of shares of Common Stock then remaining
subject to the Option shall be proportionately increased (except that any
fraction of a share resulting from any such adjustment shall be excluded from
the operation of this Option Agreement), and the exercise price per share shall
be proportionately reduced, and (b) in the event of a reduction in the number of
such shares outstanding, the number of shares of Common Stock then remaining
subject to the Option shall be proportionately reduced (except that any fraction
of a share resulting from any such adjustment shall be excluded from the
operation of this Option Agreement), and the exercise price per share shall be
proportionately increased.
Subject to any action required by the stockholders, in the
event of a Business Combination that does not result in a Change of Control, the
Option shall pertain to and apply to the securities or other consideration that
a holder of the number of shares of Common Stock underlying the Option would
have been entitled to receive in the Business Combination. In the event of a
Business Combination that results in a Change of Control of the type set forth
in paragraph (C) of the definition of Change of Control or in the event of the
complete liquidation or dissolution of the Company, then the Option shall
terminate; provided, however, that the Optionee shall, in such event, have the
right immediately prior to such Change of Control or complete liquidation or
dissolution, to exercise the Option in whole or in part.
In the event of a change in the Common Stock as presently
constituted, which change is limited to a change of all of the authorized shares
with par value into the same number of
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shares with a different par value or without par value, the shares resulting
from any such change shall be deemed to be Common Stock within the meaning of
this Option Agreement.
The existence of the Option shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, dividends, stock dividends, recapitalizations, reorganizations
or other changes in the Company's capital structure or its business, or any
merger or consolidation of the Company, or any issue of bonds, debentures,
preferred or other stocks with preference prior to or convertible into, or
otherwise affecting, the Common Stock or the rights thereof, or the dissolution
or liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
8. Compliance With the Act: No Registration Rights.
Anything in this Option Agreement to the contrary
notwithstanding, if, at any time specified herein for the issuance of Option
Shares, any law, regulation or requirements of any governmental authority having
jurisdiction in the premises shall require either the Company or the Optionee,
in the judgment of the Company, to take any action in connection with the shares
then to be issued, then the issue of such shares shall be deferred until such
action shall have been taken. Nothing in this Option Agreement shall be
construed to obligate the Company at any time to file or maintain the
effectiveness of a registration statement under the Securities Act, or under the
securities laws of any state or other jurisdiction, or to take or cause to be
taken any action that may be necessary in order to provide an exemption from the
registration requirements of the Securities Act under Rule 144 or any other
exemption with respect to the Option Shares or otherwise for resale or other
transfer by the Optionee (or by the executor or administrator of the Optionee's
estate or a person who acquired the Option or any Option Shares or other rights
by bequest or inheritance or by reason of the death of the Optionee) as a result
of the exercise of the Option evidenced by this Option Agreement.
9. Miscellaneous.
(a) Binding on Successors and Representatives. The parties
understand that this Option Agreement shall be binding not only upon
themselves, but also upon their heirs, executors, administrators,
personal representatives, successors and assigns (including any
transferee of a party hereto); and the parties agree, for themselves
and their successors, assigns and representatives, to execute any
instrument that may be necessary or desirable legally to effect such
understanding.
(b) Entire Agreement. This Option Agreement constitutes the
entire agreement of the parties with respect to the Option and
supersedes any previous agreement, whether written or oral, with
respect thereto.
(c) Amendment. Neither this Option Agreement nor any of the
terms and conditions herein set forth may be altered or amended orally,
and any such alteration or amendment shall be effective only when
reduced to writing and signed by each of the parties or their
respective successors and assigns.
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(d) Construction of Terms. Any reference herein to the
singular or plural shall be construed as plural or singular whenever
the context requires.
(e) Notices. All notices and requests under this Option
Agreement shall be in writing and shall be deemed to have been given
when personally delivered or sent prepaid registered mail:
(i) if to the Company, to the following address:
Resource Bancshares Mortgage Group, Inc.
7909 Parklane Road
Columbia, South Carolina 29223
Attention: Chief Financial Officer
or to such other address as the Company shall designate by
notice.
(ii) if to the Optionee, to the Optionee's address
appearing in the Company's records, or to such other address
as the Optionee shall designate by notice.
(f) Governing Law; Submission to Jurisdiction. This Option
Agreement shall be governed by and construed in accordance with the
laws of the State of South Carolina. The parties hereby consent to the
jurisdiction and venue of the Court of Common Pleas of South Carolina
for purposes of adjudicating any issue arising hereunder.
(g) Severability. The invalidity or unenforceability of any
particular provision of this Option Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
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IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first written above.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
By: ____________________________________
Douglas K. Freeman
Chief Executive Officer
OPTIONEE:
__________________________________(SEAL)
Name: Boyd M. Guttery
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