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EXHIBIT 10.32
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
OUTSIDE DIRECTORS' STOCK OPTION PLAN
(AS AMENDED THROUGH MARCH 19, 2001)
ARTICLE I
PURPOSE; EFFECTIVE DATE; DEFINITIONS
1.1 Purpose. This Resource Bancshares Mortgage Group, Inc. Outside
Directors' Stock Option Plan is intended to secure for Resource Bancshares
Mortgage Group, Inc. and its stockholders the benefits of the incentive inherent
in common stock ownership by the Outside Directors of the Company, who are
responsible in part for the Company's growth and financial success, and to
afford such persons the opportunity to obtain and thereafter increase a
proprietary interest in the Company on a favorable basis and thereby share in
its success.
1.2 Effective Date. Subject to the approval of the Board and to
ratification by the Company's stockholders as provided in Section 5.8, this Plan
shall become effective as of July 27, 2000.
1.3 Definitions. Capitalized terms used in this Plan but not defined
herein are used herein as defined in the Option Agreement. In addition,
throughout this Plan, the following terms shall have the meanings indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
(c) "Committee" shall mean the a committee of the Board that
is composed solely of two or more "nonemployee directors" within the meaning of
Rule 16b-3 promulgated under the Exchange Act.
(d) "Common Stock" shall mean the Common Stock, par value $.01
per share, of the Company.
(e) "Company" shall mean Resource Bancshares Mortgage Group,
Inc., a Delaware corporation.
(f) "Director" shall mean any member of the Board.
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(g) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(h) "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 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
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 an Option granted under the Plan on any day shall be the market
value of the underlying Common Stock, determined as aforesaid, less the exercise
price of the Option.
(i) "Option" shall mean an option to purchase shares of Common
Stock awarded to an Outside Director pursuant to this Plan.
(j) "Option Agreement" shall mean an agreement between the
Company and an Outside Director, in substantially the form of Annex A to this
Plan, evidencing the award of an Option; provided, however, that if an Outside
Director elects pursuant to Section 4.1(c) of the Plan to receive an Option
which is exercisable in whole immediately upon the date of award, then Section
3(a) of the Option Agreement shall be replaced in its entirety with the
following:
(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.
(k) "Option Shares" shall mean the shares of Common Stock
purchased upon exercise of an Option.
(l) "Outside Director" shall mean any Director other than a
Director who, at the time of an Option award to such Director hereunder, is a
full-time employee or executive officer of the Company or any subsidiary of the
Company.
(m) "Plan" shall mean this Resource Bancshares Mortgage Group,
Inc. Outside Directors' Stock Option Plan, as the same may be amended from time
to time.
(n) "Change of Control" shall mean:
(1) 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
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directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this paragraph (1), 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 subparagraphs (i), (ii)
and (iii) of paragraph (3) of this subsection 1.3(n); or
(2) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; 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; or
(3) 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 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, providing for such Business Combination; or
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(4) Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
ARTICLE II
COMMITTEE
2.1 Committee Work. The Company's Senior Vice President for Human
Resources (or other person with the responsibilities of such an officer) shall
advise the Committee, upon request, as to the proper interpretation,
construction and administration of this Plan and the Options. Nevertheless, this
Plan and the Options shall be interpreted, construed and administered by the
Committee alone. An Outside Director may appeal to the Committee, in writing,
any decision or action of the Committee with respect to the Plan that adversely
affects the Outside Director. Upon review of such appeal, and in any other case
where the Committee has acted with respect to the Plan or Options, the decision
on appeal or the interpretation or construction by the Committee of any
provision of this Plan or of any Option shall be conclusive and binding on all
parties. A majority of the entire Committee shall constitute a quorum, and the
action of a majority of the members present at any meeting at which a quorum is
present shall be deemed the action of the Committee. In addition, any decision
or determination reduced to writing and signed by all members of the Committee
shall be fully as effective as if it had been made by a majority vote at a
meeting duly called and held. Subject to the provisions of the Plan and the
Company's bylaws, the Committee may make such additional rules and regulations
for the conduct of its business as it shall deem advisable and shall hold
meetings at such times and places as it may determine.
2.2 Good Faith Determinations.No member of the Committee or other
member of the Board shall be liable for any action or determination made in good
faith with respect to this Plan or any Option granted hereunder.
ARTICLE III
ELIGIBILITY; SHARES SUBJECT TO THE PLAN
3.1 Eligibility. Only Outside Directors shall be eligible to receive
Option awards under this Plan.
3.2 Shares Subject to the Plan. Subject to the provisions of Section
4.3(d) (relating to adjustment for changes in the Common Stock), the maximum
number of shares that may be issued under this Plan shall not exceed in the
aggregate 400,000 shares of Common Stock, as such number of shares may be
adjusted after July 27, 2000 pursuant to Section 4.3(d). Such shares may be
authorized and unissued shares or, in the alternative, authorized and issued
shares that have been reacquired by the Company as treasury stock. If any Option
awarded under this Plan shall for any reason terminate or expire or be
surrendered without having been exercised in full, then the underlying shares
not acquired by Option exercise shall be available again for grant hereunder.
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ARTICLE IV
OPTION AWARDS
4.1 Grant of Options. (a) As of July 27, 2000, each person who is then
an Outside Director shall be awarded an Option to purchase 10,000 shares of
Common Stock, in each case at an exercise price per share equal to the Fair
Market Value per share of Common Stock on July 27, 2000.
(b) On September 1 of each year during the term of the Plan
(including September 1, 2000), the Committee, upon recommendation of the
Company's Chief Executive Officer, shall award Options to Outside Directors to
purchase shares of Common Stock, in each case at an exercise price equal to the
Fair Market Value per share of Common Stock on the September 1 that is the award
date. The number of shares of Common Stock that are subject to an Option to an
Outside Director may not exceed the number of shares recommended to the
Committee for such Outside Director by the Company's Chief Executive Officer. In
making any such recommendation to the Committee and the Committee's award of an
Option, the Company's Chief Executive Officer and the Committee may take into
account the nature of the services rendered by the Outside Director, other
compensation payable to the Outside Director by the Company, the capacity of the
Outside Director to contribute to the success of the Company and such other
factors that the Company's Chief Executive Officer and the Committee may
consider relevant.
(c) Any Outside Director may notify the Company's Chief
Executive Officer if the Outside Director wishes to receive an Option in lieu of
cash for the annual retainer to which the Outside Director is entitled for
service as an Outside Director or as chairman of or as a member of a Board
committee (but not in lieu of any other compensation, including fees for
attending meetings). Such notification (i) must be in writing, (ii) must
indicate whether the Outside Director wishes to receive an Option which is
exercisable (A) in whole immediately upon the date of award or (B) as provided
in Section 4.2 of the Plan and (iii) must be received by the Company's Chief
Executive Officer during the month of March. The notification shall relate to
all retainers payable during the 12 month period beginning on the April 1 next
following receipt of the notification and ending the following March 31 and is
irrevocable during such period. The Company's Chief Executive Officer shall
provide copies of all notifications to the Committee, which shall determine
whether to award Options in lieu of retainers to those who have requested same.
The number of shares of Common Stock that are subject to an Option to be awarded
to an Outside Director in lieu of his or her retainer shall be determined by the
Committee such that the value of the Option will be substantially equal to the
amount of the retainer which would otherwise be payable. In making such
determination, the Committee shall use a generally accepted independent option
valuation method. The exercise price of the Option shall be equal to the Fair
Market Value per share of Common Stock on the date that the retainer would
otherwise be payable in cash. The Options so awarded shall be subject to any
policy adopted by the Board relating to attendance at Board meetings, as it may
be
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amended from time to time.
(d) Notwithstanding Section 4.1(c) and Section 4.2 of the
Plan, grants of Options made prior to stockholder approval, as provided in
Section 5.8 of the Plan, shall be subject to such stockholder approval and shall
not be exercisable prior to such approval.
4.2 Vesting. Except as provided in Section 4.1(c) of the Plan, each
Option shall be exercisable, in whole or in part, at any time and from time to
time during the Option Period, but not thereafter, to the extent set forth in
the schedule below:
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if the period from then the maximum percentage of the Option
the date of the award Shares that may be purchased through such
until the Exercise Date is: Exercise Date is:
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Less than 1 year, 20%
At least 1 year, 40%
But less than 2 years,
At least 2 years, 60%
but less than 3 years,
at least 3 years, 80%
but less than 4 years,
at least 4 years, 100%
Provided, however, that (i) in the event of a Change of Control of the type set
forth in paragraph (1), (2) or (4) of the definition of Change of Control and
(ii) immediately prior to the occurrence of a Change of Control of the type set
forth in paragraph (3) of the definition of Change of Control, each Option
outstanding under the Plan shall become exercisable in whole or in part without
regard to the foregoing schedule. In addition, each Option Agreement shall
provide for acceleration of exercisability in the event of death or permanent
and total disability (within the meaning of Section 22(e)(3) of the Code). Each
Option shall terminate on the expiration of its Option Period, if not earlier
terminated.
4.3 Other Terms and Conditions. Each Option award under this Plan shall
be evidenced by an Option Agreement. The Option Agreements need not be identical
with one another, but each one shall include the substance of all of the
following terms and conditions:
(a) Numbers of Shares, Option Exercise Price and Vesting
Schedule. Each Option Agreement shall state the number of shares of Common Stock
to which it pertains, the Option exercise price and the schedule by which the
Options subject thereto shall become exercisable, all in accordance with this
Plan.
(b) Medium and Time of Payment. Upon exercise of an Option,
the Option exercise price shall be payable in United States dollars, in cash
(including check) or (unless the Board otherwise prescribes) in shares of Common
Stock owned by the optionee for a period of six months, or in a combination of
cash and such Common Stock. If all or any portion of the Option exercise price
is paid in Common Stock owned by the optionee, then that stock shall be valued
at its Fair Market Value as of the date the Option is exercised. An Option shall
be deemed to be exercised on the date that the Company receives full payment of
the exercise price for the number of shares for which the Option is being
exercised. For the purpose of assisting an optionee to
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exercise an Option, the Company may, in the discretion of the Board, make
recourse loans to the optionee or guarantee recourse loans made by third parties
to the optionee, in either case on such terms and conditions as the Board may
authorize.
(c) Minimum Exercise; No Transfers. Not less than 100 shares
of Common Stock may be purchased by Option exercise at any one time unless the
number purchased is the total number of shares in respect of which the Option is
then exercisable. No Option shall be assignable or transferable by an optionee,
and no other person shall acquire any rights therein, except that the Option may
be transferred by will or the laws of descent or distribution or pursuant to a
formal court order in connection with the divorce of the optionee.
(d) Recapitalization; Reorganization. Subject to any action
required by the stockholders of the Company, the maximum number of shares of
Common Stock that may be issued under this Plan pursuant to Section 3.2, the
number of shares of Common Stock covered by each outstanding Option and the
per-share exercise price applicable to each outstanding Option shall, in each
case, be proportionately adjusted for any increase or decrease in the number of
issued shares of Common Stock resulting from a subdivision or consolidation of
shares or the payment of a stock dividend (but only on the Common Stock) or any
other increase or decrease in the number of such shares effected without receipt
of consideration by the Company.
Subject to any action required by the stockholders, in the
event of a Business Combination that does not result in a Change of Control,
each Option outstanding under the Plan 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 (3) of the definition of
Change of Control or in the event of the complete liquidation or dissolution of
the Company, then each outstanding Option shall terminate; provided however,
that each optionee shall, in such event, have the right immediately prior to
such Change of Control or complete liquidation or dissolution, to exercise his
or her Option in whole or in part without regard to any installment provision
that might be contained in the applicable Option Agreement.
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 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 contemplation of this Plan.
The foregoing adjustments shall be made by the Committee,
whose determination shall be conclusive.
Except as expressly provided in this subsection, the optionee
shall have no rights by reason of (i) any subdivision or consolidation of shares
of any class, (ii) any stock dividend, (iii) any other increase or decrease in
the number of shares of stock of any class, (iv) any dissolution, liquidation,
merger or consolidation or spin-off, split-off or split-up of assets of the
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Company or stock of another corporation or (v) any issuance by the Company of
shares of stock of any class or securities convertible into shares of stock of
any class. Moreover, except as expressly provided in this subsection, the
occurrence of one or more of the above-listed events shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of, or
the exercise price relative to, the shares of Common Stock underlying the
Option.
The grant of an Option pursuant to this Plan shall not affect
in any way the right or power of the Company to make adjustments,
reclassifications, reorganizations or changes to, of or in its capital or
business structure or to merge, consolidate, dissolve or liquidate or sell or
transfer all or any part of its business or assets.
(e) Rights as a Stockholder. An optionee or a transferee of an
Option shall have no rights as a stockholder with respect to any shares
underlying his or her Option until the date of the issuance of a stock
certificate for those shares upon payment of the exercise price. No adjustments
shall be made for dividends (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, except as
provided in subsection 4.3(d).
(f) Option Termination.
(1) Each Option Agreement shall provide that, if the optionee
ceases to be a Director incidental to conduct that, in the judgment of
the Committee, involves a breach of fiduciary duty by such optionee or
other conduct detrimental to the Company, then his or her Option shall
terminate immediately and thereafter be of no force or effect.
(2) Each Option Agreement shall also provide that, if the
optionee ceases to be a Director for a reason other than conduct that,
in the judgment of the Committee, involves a breach of fiduciary duty
by such optionee or other conduct detrimental to the Company, then the
optionee may at any time within three months after he or she ceases to
be a Director exercise his or her Option but only to the extent the
Option was exercisable by him or her on the date he or she ceased to be
a Director (the unexercisable portion of the Option shall terminate and
thereafter be of no force or effect); provided, however, that if an
optionee so requests, his or her Option Agreements shall provide that
if the approval of the stockholders has not been obtained as required
by Section 5.8 at the time the optionee so ceases to be a Director, the
three months shall not begin to run until the first to occur of (i)
such approval of stockholders or (ii) June 1, 2001.
(3) Each Option Agreement also shall provide that, if the
optionee becomes permanently and totally disabled (within the meaning
of Section 22(e)(3) of the Code) while serving as a Director, then such
Option may be fully exercised not later than the expiration of twelve
months following such permanent and total disability by the optionee or
person, if any, appointed by a court to administer the affairs of the
optionee.
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(4) Each Option Agreement also shall provide that, if the
optionee dies while serving as a Director, then such Option may be
fully exercised not later than the expiration of twelve months
following such death 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. In addition, each Option Agreement also shall provide
that, if the optionee dies within the three month period described in
clause (2) above or the one year period described in clause (3) above,
then his or her Option may be exercised at any time within one year
following his or her death by the person or persons to whom his or her
rights under the Option shall pass by will or by the laws of descent
and distribution, but only to the extent that such Option was
exercisable by him or her on his or her date of death.
(5) Each Option Agreement also shall provide for acceleration
of exercisability in the event of a Change of Control.
(6) Notwithstanding anything to the contrary in this
subsection, an Option may not be exercised by anyone after the
expiration of its term.
ARTICLE V
MISCELLANEOUS
5.1 Designation. This Plan may be referred to in other documents and
instruments as the "Resource Bancshares Mortgage Group, Inc. Outside Directors'
Stock Option Plan."
5.2 Amendment, Suspension, Discontinuance and Termination of Plan. The
Committee may from time to time amend, suspend or discontinue this Plan or
revise it in any respect whatsoever for the purpose of maintaining or improving
its effectiveness as an incentive device, for the purpose of conforming it to
applicable governmental regulations or to any change in applicable law or
regulations, or for any other purpose permitted by law; provided, however, that
no such action by the Committee shall adversely affect any Option theretofore
awarded hereunder without the consent of the holder so affected; provided
further that any amendment to this Plan that would materially increase the
benefits accruing to participants hereunder, materially increase the number of
shares of Common Stock that may be issued upon exercise of Options granted
hereunder or materially modify this Plan's requirements as to eligibility for
participation herein must be approved by the stockholders of the Company. This
Plan will terminate on the date when all shares of the Common Stock received for
issuance under the Plan have been acquired upon exercise of Options granted
hereunder or on such earlier date as the Board may determine.
5.3 Governing Law. This Plan and all rights and obligations hereunder
shall be construed in accordance with and governed by the laws of the State of
South Carolina.
5.4 Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including
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legal fees actually and necessarily incurred in connection with the defense of
any investigation, action, suit or proceeding, or in connection with any appeal
therefrom, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with this Plan or any Option
granted hereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Company) or paid by them in satisfaction of a judgment in or dismissal or
other discontinuance of any such investigation, action, suit or proceeding,
except in relation to matters as to which it shall be adjudged in such
investigation, action, suit or proceeding that such Committee member is liable
for negligence or misconduct in the performance of his or her duties, provided
that, within 60 days after institution of any such investigation, action, suit
or proceeding, a Committee member shall in writing offer the Company the
opportunity, at its own expense, to handle and defend the same.
5.5 Reservation of Shares. The Company shall, at all times during the
term of this Plan and so long as any Option shall be outstanding, reserve and
keep available such number of shares of Common Stock as shall be sufficient to
satisfy the requirements hereof. Notwithstanding the foregoing, the inability of
the Company to obtain, from any regulatory body of appropriate jurisdiction,
authority considered by the Company to be necessary or desirable to the lawful
issuance of any shares of its Common Stock hereunder shall relieve the Company
of any liability in respect of the non-issuance or sale of such Common Stock as
to which such requisite authority shall not have been obtained.
5.6 Application of Funds. The proceeds received by the Company from the
sale of Common Stock upon the exercise of Options will be used for general
corporate purposes.
5.7 No Obligation to Exercise.The award of an Option under this plan
shall impose no obligation upon the optionee to exercise that Option.
5.8 Approval of Stockholders. No Options awarded pursuant to this Plan
shall be enforceable against the Company unless and until the Plan shall have
been ratified by the stockholders of the Company.
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