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EXHIBIT 10.14
ANY DISPUTE OR CONTROVERSY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT
SHALL BE SUBJECT TO ARBITRATION PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION AND THE SOUTH CAROLINA UNIFORM ARBITRATION ACT.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
WHEREAS, Resource Bancshares Mortgage Group, Inc. (the "Corporation")
desires to adopt and establish, effective as of January 1, 1998, a
non-qualified unfunded supplemental executive retirement plan to be known as
the Resource Bancshares Mortgage Group, Inc. Supplemental Executive Retirement
Plan" for the purpose of providing certain benefits for eligible employees, all
as more specifically provided for herein below;
NOW THEREFORE, the Corporation does hereby adopt and establish
effective as of January 1, 1998, the "Resource Bancshares Mortgage Group, Inc.
Supplemental Executive Retirement Plan" consisting of the terms and provisions
set forth in Articles I through VIII, inclusive, as follows:
ARTICLE I
NAME AND PURPOSE
Section 1.1 Name. The plan, as defined below, shall be known as
the Resource Bancshares Mortgage Group, Inc. Supplemental Executive Retirement
Plan."
Section 1.2 Purpose. The purpose of the plan is to provide
Eligible Employees, as defined below, of the Participating Employers, as
defined below, who become Participants, as defined below, in this Plan with
certain retirement benefits in accordance with the provisions of the Plan.
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ARTICLE II
CONSTRUCTION, DEFINITIONS AND APPLICABLE LAW
Section 2.1 Construction and Definitions.
(a) Construction. Article, section and paragraph headings have been
inserted for convenience of reference only in the Plan and are to be ignored in
any construction of the provisions hereof. If any provision of the Plan shall
for any reason be invalid or unenforceable, the remaining provisions shall
nevertheless be valid, enforceable and fully effective.
(b) Definitions. Whenever used in the Plan, unless the context
clearly indicates otherwise, the following terms shall have the following
meanings:
(1) Affiliated Corporation means
(A) any corporation more than fifty percent (50%) of whose
outstanding voting capital stock is owned by Resource Bancshares
Mortgage Group, Inc.;
(B) any corporation at least eighty percent (80%) of whose
outstanding voting capital stock and at least eighty percent (80%) of
each class of whose outstanding non-voting capital stock is owned by a
corporation more than fifty percent (50%) of whose outstanding voting
capital stock is owned by Resource Bancshares Mortgage Group, Inc.; or
(C) any corporation at least eighty percent (80%) of whose
outstanding voting capital stock and at least eighty percent (80%) of
each class of whose outstanding non-voting capital stock is owned by a
corporation described in subparagraph (B) above.
(2) Beneficiary means the Participant's spouse as of the
date benefits become payable under this Plan.
(3) Benefit Commencement Date means, with respect to a
Participant who becomes eligible for Normal Retirement, Early Retirement or
retirement pursuant to Section 4.4 the first day of the calendar quarter
(January 1, April 1, July 1, and October 1) following the
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day in which such Participant becomes eligible for Normal Retirement, Early
Retirement or retirement pursuant to Section 4.4.
(4) Claim means a claim for benefits under the Plan.
(5) Claimant means a person making a Claim.
(6) Code means the Internal Revenue Code of 1986, as
amended from time to time, and references thereto shall include the valid
Treasury regulations thereunder.
(7) Corporation means Resource Bancshares Mortgage Group,
Inc., a Delaware corporation.
(8) Creditable Service means, with respect to a
Participant as of any date, such Participant's "Benefit Accrual Service" as of
such date determined in accordance with the provisions of the Retirement Plan.
(9) Early Commencement Adjustment Factor means, with
respect to a Participant eligible to receive Early Retirement Benefits, one
less one-third of one percent (0.33%) for each month that the Participant's
Benefit Commencement Date precedes the first day of the month coincident or
immediately preceding the date upon which the Participant reaches Normal
Retirement Age.
(10) Early Retirement means, with respect to a Participant,
such Participant's (1) having attained age fifty-five (55); (2) having
completed at least ten years of Creditable Service; (3) having separated from
Service; and (4) having elected to receive the Early Retirement Benefit.
(11) Early Retirement Benefit means, with respect to a
Participant eligible for Early Retirement, the difference between (1) the
product of 60% of Final Average Pay
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multiplied by the Early Commencement Adjustment Factor, minus (2) the sum of
(a) Other Retirement Benefits, and (b) the Primary Insurance Benefit.
(12) Earnings means, with respect to a Participant, as of
any date, such Participants annual base salary of the Employee as shown by the
personnel records of the Participating Employers plus cash bonuses (with the
includible cash bonuses limited to $100,000) received by the Participant during
the applicable calendar year.
(13) Effective Date means, with respect to the Plan,
January 1, 1998.
(14) Eligible Employee means an Employee who is on the
executive committee of the Corporation or who has been designated as eligible
to become a Participant in the Plan pursuant to Section 3.1.
(15) Employee means a person employed by any of the
Participating Employers.
(16) Final Average Pay means, with respect to a Participant
as of any date, the highest amount obtainable by averaging the Earnings of a
Participant in any five calendar years out of the last ten calendar years
preceding the date of Retirement or termination of employment. In the case of a
Participant without five complete calendar years of Earnings, Final Average Pay
means, with respect to a Participant as of any date, the amount equal to twelve
times the Average Monthly Earnings. For purposes of this section, Average
Monthly Earnings means the quotient obtained by dividing (1) the sum of (a)
Earnings for each consecutive full calendar year for which the Participant has
been employed with a Participating Employer; (b) the product of Earnings for
the calendar year preceding the calendar years described in (a) above
multiplied by a fraction of which the numerator is the number of complete
consecutive months (ending on December 31st) for which the Participant has been
employed with a Participating Employer
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during such calendar year and the denominator is twelve (12); and (c) the
product of Earnings for the calendar year succeeding the calendar years
described in (a) above multiplied by a fraction of which the numerator is the
number of complete consecutive months (beginning on January 1st and ending on
the date of Retirement of termination of employment) for which the Participant
has been employed with a Participant Employer during such calendar year and the
denominator is twelve (12); by (2) the number of complete consecutive months of
employment to which such Earnings are attributable (i.e., twelve for each year
described in (a) above plus the numerator of the fractions described in (b) and
(c) above).
(17) Management Compensation Committee means the
Compensation Committee of the Board of Directors of the Company if no such
Committee exists or is otherwise established then the Board of Directors of the
Company shall be deemed to be the Management Compensation Committee.
(18) Normal Retirement means, with respect to a
Participant, such Participant's (1) having attained Normal Retirement Age; (2)
having completed at least ten years of Creditable Service; (3) having separated
from Service; and (4) having elected to receive the Normal Retirement Benefit.
(19) Normal Retirement Age means, with respect to a
Participant, the attainment of age sixty-two (62).
(20) Normal Retirement Benefit means, with respect to a
Participant eligible for Normal Retirement, 60% of Final Average Pay less the
sum of (1) Other Retirement Benefits, and (2) the Primary Insurance Benefit.
(21) Other Retirement Benefits means, with respect to a
Participant, the benefit
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payable by the Retirement Plan to such Participant expressed as an annual
benefit payable as of the Benefit Commencement Date as a Qualified Joint and
Survivor Annuity plus, with respect to a Participant, the benefit payable by
the Pension Restoration Plan to such Participant expressed as an annual benefit
payable as of the Benefit Commencement Date as a Qualified Joint and Survivor
Annuity (whether or not the Participant elects to receive such benefits at
Normal Retirement, Early Retirement or retirement pursuant to Section 4.4). The
determination of the value of the joint and survivor annuities shall be based
on the actuarial equivalence factors as defined in the Retirement Plan.
(22) Participant means an Eligible Employee who has been
designated a participant in the Plan as provided in Section 3.2 of the Plan.
(23) Participating Employers means Resource Bancshares
Mortgage Group, Inc. and those Affiliated Corporations of Resource Bancshares
Mortgage Group, Inc. which in the future adopt the Plan pursuant to the
provisions of Section 7.1 hereof.
(24) Pension Restoration Plan means the RBMG, Inc. Pension
Restoration Plan, as amended and restated effective as of January 1, 1995, as
amended from time to time.
(25) Plan means the Resource Bancshares Mortgage Group,
Inc. Supplemental Executive Retirement Plan, as amended from time to time.
(26) Plan Committee means the committee described in
Article V hereof.
(27) Plan Year means the twelve (12) month period beginning
January 1 and ending December 31.
(28) Primary Insurance Benefit means the monthly amount of
benefits which a Participant is or would be entitled to receive at age 65, or
later if his unreduced primary
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insurance benefit commences at a later age, as a primary insurance amount under
the federal Social Security Act, as amended, as determined in accordance with
this subsection, whether or not he applies for such benefit, and even though he
may lose part or all of such benefit through delay in applying for it, by
making application for a reduced benefit, by entering into covered employment
or for any other reason. The amount of such Primary Insurance Benefit to which
the Participant is or would be entitled shall be estimated by the Plan
Committee for the purposes of the Plan as of the January 1 of the year in which
retirement or termination occurs on the following basis:
(1) For a Participant entitled to a Normal Retirement
Benefit, on the basis of the federal Social Security Act as
in effect on the January 1 coincident with or next preceding
his Normal Retirement Age (regardless of any retroactive
changes made by legislation enacted after said January 1); or
(2) For a Participant entitled to an Early Retirement
Benefit, on the basis of (i) the federal Social Security Act
as in effect on the January 1 coincident with or next
preceding the time his employment with the Company terminates
because of his early retirement (regardless of any
retroactive changes made by legislation enacted after said
January 1), and (ii) the benefit formula under the Social
Security Act that would be applicable to him at the date his
monthly benefits under the Social Security Act would equal
the primary insurance amount under the Social Security Act,
assuming no future compensation; or
(3) For a Participant who has terminated with a vested
benefit on the basis of (i) the federal Social Security Act
as in effect on the January 1 coincident with or next
preceding the time his employment with the Company terminates
(regardless of any retroactive changes made by legislation
enacted after said January 1), and (ii) the benefit formula
under the Social Security Act that would be applicable to him
at the date his monthly benefits under the Social Security
Act would equal the primary insurance amount under the Social
Security Act, assuming his employment, and Earnings in effect
at his termination of employment, continued to the date his
monthly benefits under the Social Security Act would equal
the primary insurance amount under the Social Security Act.
(29) Qualified Joint and Survivor Annuity means, for a
married participant, a retirement benefit which equal quarterly installments
are payable during the joint lifetime of the
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retired Participant and the Participant's spouse, and under which, upon the
earlier death of the retired Participant, 50% continues to be paid to the
Participant's spouse for the Participant's spouse's lifetime. For a single
Participant it shall mean a benefit payable in the form of an annuity for the
life of the Participant.
(30) Retirement Plan means the RBMG, Inc. Pension Plan
(effective as of January 1, 1994), as amended from time to time.
(31) Service means "Service" as defined in the Retirement
Plan.
Section 2.2. Applicable Law. The Plan shall be construed,
administered, regulated and governed in all respects under and by the laws of
the United States to the extent applicable, and to the extent such laws are not
applicable, by the laws of the State of South Carolina.
ARTICLE III
PARTICIPATION
Section 3.1. Eligibility. No person shall become a Participant
unless or until such person is or becomes an Eligible Employee. The names of
the initial Eligible Employees are contained on the attached Exhibit 3.2. In
addition, the Plan Committee, in its discretion, shall determine which
additional Employees of the Participating Employers shall become Eligible
Employees. Designation of Eligible Employees shall be made in such manner as
the Plan Committee shall determine from time to time.
Section 3.2. Designation of Participants. The names of the initial
Participants of the Plan are contained on the attached Exhibit 3.2. In
addition, the Plan Committee, as applicable, may designate an Eligible Employee
as a Participant for the purpose of permitting such individual to become a
Participant in the Plan.
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ARTICLE IV
BENEFITS
Section 4.1. General. The benefits to be provided by the Plan shall
be determined in accordance with the provisions of the Plan subject to selected
provisions of the Retirement Plan. Such benefits shall depend upon (i) the age
of such Participant upon termination of employment or retirement, as the case
may be, (ii) the amount of compensation of such Participant and (iii) such
Participant's Creditable Service at the time such Participant separates from
Service. A Participant with ten or more years of Creditable Service shall in
all events be entitled to benefits under the Plan. A Participant shall elect to
receive Early Retirement Benefits, Normal Retirement Benefits, or retirement
benefits pursuant to Section 4.4 by giving written notice, in such form and
manner as established by the Committee, to the Committee prior to the Benefit
Commencement Date.
Section 4.2. Normal Retirement. Subject to the provisions of
Article VI, upon the Normal Retirement of a Participant such Participant shall
become entitled to such Participant's Normal Retirement Benefit. Such
Participant's Normal Retirement Benefit shall be expressed as an annual benefit
payable as a Qualified Joint and Survivor Annuity payable for the lifetime of
the Participant and the Participant's Beneficiary beginning on such
Participant's Benefit Commencement Date. The total Normal Retirement Benefit
payable for such period shall be payable in equal quarterly installments. Such
quarterly installments shall commence on such Participant's Benefit
Commencement Date and continue on the first day of each calendar quarter
(January 1, April 1, July 1 and October 1) thereafter until the later of the
death of the Participant or the death of the Participant's Beneficiary.
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Section 4.3. Early Retirement. Subject to the provisions of Article
VI, upon the Early Retirement of a Participant such Participant shall become
entitled to such Participant's Early Retirement Benefit. Such Participant's
Early Retirement Benefit shall be expressed as an annual benefit payable as a
Qualified Joint and Survivor Annuity payable for the lifetime of the
Participant and the Participant's Beneficiary beginning on such Participant's
Benefit Commencement Date. The total Early Retirement Benefit payable for such
period shall be payable in equal quarterly installments. Such quarterly
installments shall commence on such Participant's Benefit Commencement Date and
continue on the first day of each calendar quarter (January 1, April 1, July 1,
and October 1) thereafter until the later of the death of the Participant or
the death of the Participant's Beneficiary.
Section 4.4. Certain Separations From Service after a Change in
Control. In the event of a Change in Control (as described in Section 6.3) and
the Participant is involuntarily terminated without Cause, the acquiring
company terminates the Plan, or the Participant separates from service for Good
Reason, such Participant shall be vested for benefits under this Plan according
to the following schedule:
Creditable Service Vesting Percentage
- ------------------ ------------------
1 30%
2 40%
3 50%
4 60%
5 70%
6 80%
7 90%
8 100%
Upon the Participant's attaining age 62 and in the absence of the Participant's
electing to receive the Optional Early Retirement Benefit (described below),
the Participant shall be entitled to
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receive a retirement benefit equal to the Normal Retirement Benefit multiplied
by the applicable Vesting Percentage. This retirement benefit shall be paid in
accordance with the provisions of Section 4.2. Upon the Participant's attaining
age 55, the Participant shall be entitled to elect to receive an Optional Early
Retirement Benefit equal to the Early Retirement Benefit multiplied by the
applicable Vesting Percentage. This retirement benefit shall be paid in
accordance with the provisions of Section 4.3.
For purposes of this section, "Cause" shall mean (i) a material breach
by the Participant of the Participant's obligation to the Corporation (other
than as a result of incapacity due to physical or mental illness) which is
demonstrably willful and deliberate on the Participant's part, which is
committed in bad faith or without reasonable belief that such breach is in the
best interest of the Corporation and which is not remedied in a reasonable
period of time after receipt of written notice from the Corporation specifying
such breach or (ii) the conviction of the Participant of a felony involving
moral turpitude.
For purposes of this section, "Good Reason" shall mean the (i)
Participant's determination that as a result of a change in circumstances
occurring following a Change in Control significantly effecting his position,
he can no longer adequately exercise his authority, power, functions or duties
of his position; (ii) Participant's determination that he can no longer perform
his duties by reason of a substantial diminution of his responsibilities,
status, or position; or (iii) the Corporation requiring the Participant to
relocate to an area 100 miles outside of the Participant's place of business as
of the date of the Change in Control.
Section 4.5. Death Benefits.
(a) Death After Separation from Service. In the event a Participant
separates from
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Service after becoming eligible for Normal Retirement or Early Retirement, but
such Participant dies prior to such Participant's Benefit Commencement Date,
the benefits payable under the Qualified Joint and Survivor Annuity shall be
paid to such Participant's Beneficiary, if any, commencing on the Benefit
Commencement Date. In the event a Participant entitled to benefits pursuant to
Section 4.4 dies prior to receipt of benefits under Section 4.4, the benefits
shall be paid to such Participant's Beneficiary, if any, in accordance with the
provisions of Section 4.5(b).
(b) Death While in Service. In the event a Participant (having
completed at least ten years of Creditable Service) dies while in Service, the
Participant's Beneficiary shall be paid a death benefit equal to 50% of the
Participant's Early Retirement Benefit or, if applicable, the Normal Retirement
Benefit. In the event that the Participant had not yet attained age 55, the
death benefit shall be equal to 50% of the Participant's Early Retirement
Benefit. The death benefit provided herein shall be expressed as an annual
benefit payable for life of the Beneficiary with the initial quarterly payment
beginning on the first day of the calendar quarter (January 1, April 1, July 1,
October 1) following the calendar quarter in which such Participant dies except
that in the event the Participant had not yet attained age 55 such benefit
shall not be payable until such time as the Participant would have attained age
55 but for his death. The total death benefit payable shall be payable in equal
quarterly installments. Such quarterly installments shall commence on the first
day of the calendar quarter following the quarter in which such Participant
dies (or, in the event of a Participant dying before age 55, the date the
Participant would have attained age 55) and continue on the first day of each
calendar quarter thereafter until the death of the Beneficiary.
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(c) Article VI Controlling. The provisions of this Section 4.5 shall
be subject to the provisions of Article VI.
Section 4.6. Additional Payments by Corporation. In the event it is
determined that any payment or distribution under this Plan would be or is
subject to the excise tax imposed by Section 4999 of the Code or any interest
or penalties are incurred by a Participant with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the Excise Tax), the Corporation shall
make an additional payment ("Gross-Up Payment") in an amount such that after
payment by the Participant of all taxes (including any interest or penalties
imposed with respect to such taxes), including without limitation, any income
taxes (any interest and penalties imposed with respect thereto) and Excise Tax
imposed on the Gross-Up Payment, the Participant retains an amount equal to the
Excise Tax imposed on the benefit provided under the Plan.
All determinations required to be made under this section, including,
whether and when a Gross-Up Payment is required and the amount of the Gross-Up
Payment and the assumptions to be utilized in arriving at such determinations,
shall be made by an accounting firm (the "Accounting Firm") selected by the
members of the Plan Committee (as of the date of the Change in Control). Prior
to or upon a Change in Control, the Plan Committee shall select an Accounting
Firm and the Accounting Firm shall make appropriate computations of Gross-Up
Payments for benefits paid and payable under the Plan after the Change in
Control. All fees and expenses of the Accounting Firm shall be borne solely by
the Corporation. Any Gross-Up Payment shall be paid by the Corporation within
ten days of the Participant's and the Corporation's receipt of the computation
of the amount of the Gross-Up Payment (including
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detailed supporting calculations). If the Accounting Firm determines that no
Excise Tax is payable by a Participant, the Accounting Firm shall furnish to
the Participant a written confirmation that failure to report the Excise Tax on
the Participant's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. The Participant shall notify the
Corporation in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Corporation of the Gross-Up
Payment.
ARTICLE V
PLAN COMMITTEE
Section 5.1. Appointment, Term of Office and Vacancy. The Plan
Committee shall consist of the Chairman of the Compensation Committee of the
Board of Directors, the Chief Executive Officer of the Corporation, the Vice
Chairman of the Corporation, and any additional individuals appointed by the
Board of Directors of the Corporation. The Board of Directors of the
Corporation shall have the absolute right to remove any member of the Plan
Committee at any time, with or without cause, and any member of the Plan
Committee shall have the right to resign at any time. If a vacancy in the Plan
Committee should occur, from death, resignation, removal or otherwise, a
successor shall be appointed by the Board of Directors of the Corporation.
Section 5.2. Organization of Plan Committee. The Plan Committee
shall designate one of the members of the Plan Committee to serve as its
Chairman, one member as its Vice-Chairman and one member as its Secretary. One
person may hold more than one office. The Plan Committee, as it may deem
necessary for the effective performance of its duties, may
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designate one person as agent to act for the Plan Committee and may delegate to
such agent such powers and duties, whether ministerial or discretionary, as the
Plan Committee may delegate. The Plan Committee shall act by majority vote and
may adopt such bylaws, rules and regulations as it deems desirable for the
conduct of its affairs. The members of the Plan Committee shall serve as such
without compensation.
Section 5.3. Powers of the Plan Committee. The Plan Committee shall
administer the Plan. The Plan Committee shall have all the powers to enable it
to carry out its duties under the Plan properly. Not in limitation of the
foregoing, the Plan Committee shall have the power to construe and interpret
the Plan and determine all questions that shall arise thereunder. It shall
decide all questions arising with respect to the interpretation of the Plan and
shall have such other and further specified duties, powers, authority and
discretion as are elsewhere in the Plan either expressly or by necessary
implication conferred upon it. The decision of the Plan Committee upon all
matters within the scope of its authority shall be final and conclusive on all
persons, except to the extent otherwise provided by law.
Section 5.4. Expenses of Plan Committee. The reasonable expenses of
the Plan Committee incurred by the Plan Committee in the performance of its
duties under the Plan, including without limitation, reasonable counsel fees
and expenses of other agents, shall be paid by the Participating Employers.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment and Termination of the Plan. Except as
provided in Section 6.3, the Participating Employers expressly reserve the
right, at any time and from time to time,
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to amend in whole or in part any of the terms and provisions of the Plan and to
terminate the Plan for whatever reasons the Participating Employers may deem
appropriate. The Management Compensation Committee shall have authority to so
amend or terminate the Plan on behalf of the Participating Employers in all
respects. Any such amendment or termination of the Plan shall be effected by an
instrument in writing duly executed and acknowledged on behalf of the
Participating Employers which amendment shall become a part of the Plan. Upon
termination of the Plan the benefits accrued by each Participant as of the date
of termination shall become vested in accordance with the schedule in Section
4.4 and the actuarial equivalent of such accrued benefits (utilizing the
actuarial assumptions contained in Section 2.1(b)(21)) shall be paid to such
Participants in a lump sum as if such Participant has separated from service
immediately following the date of termination. Furthermore the Plan may not be
amended to retroactively reduce or modify any Participant's accrued benefit as
provided by the Plan.
Section 6.2 Income Tax Aspects of the Plan. The Participating
Employers have established the Plan and shall maintain the Plan based on
certain "assumptions" regarding the income tax aspects of the Plan. Such
"assumptions" include (i) the applicability of Section 451(a) of the Code to a
participant's recognition of gross income as a result of participation in the
Plan and (ii) the applicability of Section 404(a)(5) of the Code to the
benefits paid by the Participating Employers to Participants under the Plan.
Section 6.3. Change in Control. For purposes of this Agreement, the
term "control" means the power to directly or indirectly direct or cause the
direction of the management or indirectly direct or cause the direction of the
management or policies of the Participating Employers. A change in control
shall be deemed to have occurred for purposes of this
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agreement: (i) upon the merger of the Participating Employers with or into or
the consolidation of the Participating Employers with another corporation
where, as a result of such merger or consolidation, the shareholders of the
Participating Employers immediately prior to such merger or consolidation do
not own at least a majority of the voting power of the resulting or surviving
corporation or the corporation whose securities were issued in connection
therewith, as the case may be; or (ii) upon the sale of all or substantially
all the assets of the Participating Employers; or (iii) if any person is or
becomes the beneficial owner, directly or indirectly, of securities of the
Participating Employers representing 25% or more of the votes that could then
be cast in an election for the Participating Employers' Board of Directors; or
(iv) if less than a majority of the members of the Participating Employers'
Board of Directors during any period of 24 consecutive months continues to be
composed of persons who were serving as directors at the beginning of any such
24-month period or who were persons elected as directors by the vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of such 24-month period. When two or more persons act as a
partnership, limited partnership, syndicate, or other group for the purpose of
acquiring, holding or disposing of securities of an issuer, such partnership,
syndicate or group shall be deemed a "person" for the purposes of this
definition of "change in control." For the purposes of the definition of
"change in control" of the Participating Employer, a beneficial owner of a
security includes any person, who directly or indirectly, pursuant to a
contract, arrangement, understanding, relationship or otherwise has: (A) voting
power which includes the power to vote, or to direct the voting of, such
security; and/or (B) investment power which includes the power to dispose, or
to direct the disposition of, such security. For purposes of this definition of
change in control, the "Participating
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Employers" shall mean only Resource Bancshares Mortgage Group, Inc.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Adoption by an Affiliated Corporation. An Affiliated
Corporation may, with the approval of the Management Compensation Committee and
the Board of Directors of such Affiliated Corporation, elect to adopt the Plan
as of the date mutually agreeable to the Management Compensation Committee and
the Board of Directors of such Subsidiary Corporation. Any such adoption of the
Plan by a Subsidiary Corporation shall be evidenced by an appropriate
instrument of adoption executed by such Subsidiary Corporation.
Section 7.2. Authorization and Delegation to the Management
Compensation Committee. Each Affiliated Corporation which is or hereafter
becomes a Participating Employer authorizes and empowers the Management
Compensation Committee or, if applicable, the Plan Committee (i) to amend or
terminate the Plan without further action by said Affiliated Corporation as
provided in Article VI and (ii) to perform such other acts and do such other
things as the Management Compensation Committee or Plan Committee is expressly
directed, authorized or permitted to perform or do as provided herein.
Section 7.3. Spendthrift Clause. To the extent permitted by law, no
benefits payable under the Plan shall be subject to the claim of any creditor
of any Participant or to any legal process by any creditor of any Participant
and no Participant entitled to benefits hereunder shall have any right
whatsoever to alienate, commute, anticipate or assign any benefits under the
Plan.
Section 7.4. Benefits Payable From General Assets of the
Participating Employers. All benefits payable hereunder shall be paid from the
general assets of the Participating Employers.
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No assets of the Participating Employers shall be segregated or placed in trust
pursuant to the Plan in a manner which would put such assets beyond the reach
of the general creditors of any Participating Employer. The right of any
Participant (or Beneficiary) to receive any benefit hereunder shall be no
greater than the right of any general, unsecured creditor of the Participating
Employers. Nothing contained in the Plan shall create or be construed as
creating a trust of any kind or any other fiduciary relationship between the
Participating Employers and a Participant (or Beneficiary). In the event the
Participating Employers purchase any insurance policies insuring the life of
any Eligible Employee hereunder, no Eligible Employee shall have any rights
whatsoever therein and the Participating Employers shall be the sole owner and
beneficiary thereof and shall possess and exercise all incidents of ownership
therein.
Section 7.5. Successors and Assigns. This agreement shall inure to
the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Participating Employers shall find that any
person to whom a payment is payable under this Agreement, has been adjudicated
incompetent or, by reason of illness or mental or physical disability, is
unable properly to handle his or her own affairs, then (unless a claim for such
payment has been made by a duly appointed guardian, committee or other legal
representative) such payment may be made to a relative or friend for such
persons' care or support, may be paid directly to a hospital, nursing home or
other creditor for such persons' benefit, or may be paid in such other manner
as the Participating Employers may determine, including payment to such person
himself. Any such payment shall be a complete discharge of the Participating
Employers' liability hereunder for such payment.
Section 7.6. Other Compensation. No payments under this Agreement
shall be deemed
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salary or other compensation to the Employee for the purpose of computing
benefits to which the Employee may be entitled under any pension plan or other
arrangement which the Participating Employers may have for the benefit of its
employees.
Section 7.7. Successors in Interest. The Participating Employers
will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Participating Employers or of any division or subsidiary thereof
employing the Employee, to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Participating Employers
would be required to perform it if no such succession had taken place. Failure
of the Participating Employers to obtain such assumption and agreement prior to
the effectiveness of any such succession shall be a breach of the Agreement and
shall entitle the Employee to compensation from the Participating Employers in
the same amount and on the same terms as the Employee would be entitled
hereunder if the Employee terminated employment, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the date of termination.
Section 7.8 Arbitration. After the claimant has exhausted his
administrative remedies provided by the Plan, any dispute or controversy
arising under, or in connection with, this Agreement shall be settled
exclusively by arbitration in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
Section 7.9. Allocation of Costs of Benefits Among the
Participating Employers. The cost of benefits to be provided a Participant (or
Beneficiary) pursuant to this Plan shall be paid
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by the Participating Employer of such Participant. In the case of a transfer of
a Participant between Participating Employers, the Participating Employer to
whom such Participant is transferred shall assume the responsibility of the
Participating Employer from which such Participant is transferred without
further action, and the cost of benefits provided pursuant to the Plan shall be
allocated among the Participating Employers in proportion to the benefits
payable by each such Participating Employer pursuant to the Plan.
Section 7.10. Benefits Limited to the Plan. Participation in the
Plan shall not give a Participant any right to be retained in the employ of any
one or more of the Participating Employers nor, upon dismissal, any right or
interest in the Plan except as expressly provided herein.
ARTICLE VIII
CLAIMS PROCEDURE
Section 8.1 Claims Procedure.
(a) General. In the event that a Claimant has a Claim under the
Plan, such Claim shall be made by the Claimant's filing notice thereof with the
Plan Committee within ninety (90) days after such Claimant first has knowledge
of such Claim. Each Claimant who has submitted a Claim to the Plan Committee
shall be afforded a reasonable opportunity to state such Claimant's position
and to present evidence and other material relevant to the Claim to the Plan
Committee for its consideration in rendering its decision with respect thereto.
The Plan Committee shall render it decision in writing within sixty (60) days
after the Claim is referred to it, and a copy of such written decision shall be
furnished to the Claimant.
(b) Notice of Decision of Committee. Each Claimant whose Claim has
been denied
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by the Plan Committee shall be provided written notice thereof, which notice
shall set forth:
(i) the specific reason(s) for the denial;
(ii) specific reference to pertinent provision(s) of the
Plan upon which such denial is based;
(iii) a description of any additional material or
information necessary for the Claimant to perfect such Claim and an
explanation of why such material or information is necessary; and
(iv) an explanation of the procedure hereunder for review
of such claim; all in a manner calculated to be understood by such
Claimant.
(c) Review of Decision of Plan Committee. Each such Claimant shall
be afforded a reasonable opportunity for a full and fair review of the decision
of the Plan Committee denying the Claim. Such review shall be by the Management
Compensation Committee. Such appeal shall be made within ninety (90) days after
the Claimant received the written decision of the Plan Committee and shall be
made by the written request of the Claimant or such Claimant's duly authorized
representative of the Management Compensation Committee. In the event of
appeal, the Claimant or such Claimant's duly authorized representative may
review pertinent documents and submit issues and comments in writing to the
Management Compensation Committee. The Management Compensation Committee shall
review the following:
(i) the initial proceedings of the Plan Committee with
respect to such Claim;
(ii) such issues and comments as were submitted in writing
by the Claimant or the Claimant's duly authorized representative; and
(iii) such other material and information as the Management
Compensation Committee, in its sole discretion, deems advisable for a
full and fair review of the decision of the Plan Committee.
The Management Compensation Committee may approve, disapprove or modify the
decision of
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the Plan Committee, in whole or in part, or may take such other action with
respect to such appeal as it deems appropriate. The decision of the Management
Compensation Committee with respect to such appeal shall be made promptly, and
in no event later than sixty (60) days after receipt of such appeal, unless
special circumstances require an extension of such time within which to render
such decision, in which event such decision shall be rendered as soon as
possible and in no event later than one hundred twenty (120) days following
receipt of such appeal. The decision of the Management Compensation Committee
shall be in writing and in an manner calculated to be understood by the
Claimant and shall include specific reasons for such decision and set forth
specific references to the pertinent provisions of the Plan upon which such
decision is based. The Claimant shall be furnished a copy of the written
decision of the Management Compensation Committee. Such decision shall be final
and conclusive upon all persons interested therein, except to the extent
otherwise provided by applicable law.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed by their duly authorized officers all as of the 20 day of May,
1998.
RESOURCE BANCSHARES MORTGAGE
GROUP, INC.
[CORPORATE SEAL]
ATTEST: By: /s/ Edward J. Sebastian
-----------------------------
CHAIRMAN & C.E.O.
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/s/ John W. Currie
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John W. Currie, Secretary
/s/ David W. Johnson, Jr.
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Vice Chairman
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