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EXHIBIT 10.34
SECOND AMENDMENT
TO
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
FORMULA STOCK OPTION PLAN
THIS SECOND AMENDMENT TO RESOURCE BANCSHARES MORTGAGE GROUP, INC.
FORMULA STOCK OPTION PLAN is made as of the ____ day of October, 1998 by
RESOURCE BANCSHARES MORTGAGE GROUP, INC. (the "Company").
W I T N E S S E T H:
WHEREAS, the Company maintains the Resource Bancshares Mortgage Group,
Inc. Formula Stock Option Plan (the "Plan") for the benefit of its directors who
are not full-time employees or executive officers of the Company ("Independent
Directors"); and
WHEREAS, in Section 5.2 of the Plan, the Company reserved the right by
action of a committee (the "Committee") composed of all members of its Board of
Directors except Independent Directors to amend the Plan; and
WHEREAS, the Committee now desires to amend certain provisions of the Plan;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Company covenants and agrees that the Plan is amended as
follows, effective as of the date first above written:
1. Section 1.3 of the Plan is amended by adding the following
definition thereto:
"(o) "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 Section 1.3(o); or
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(b) 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
(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 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
(d) Approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company."
2. Section 4.1 of the Plan is amended by deleting therefrom the clause
beginning with "provided that" and ending with "foregoing schedule" which
immediately precedes the last sentence of such section and substituting in lieu
thereof the following:
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"provided, however, that (i) in the event of a Change of Control of the
type set forth in paragraph (a), (b) or (d) 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 (c) 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."
3. Subsection 4.2(d) of the Plan is amended by deleting therefrom in
its entirety the second paragraph thereof and inserting in lieu thereof the
following:
"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 (c) 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."
4. Section 4.2(f) of the Plan is amended by deleting therefrom in its
entirety the penultimate sentence thereof and substituting in lieu thereof the
following:
"(f) Each Option Agreement also shall provide for acceleration
of exercisability in the event of a Change of Control."
5. The Company reserves the right by action of the Committee to amend
further at any time any of the terms and provisions of the Plan as amended
hereby. Except as expressly or by necessary implication amended hereby, the Plan
shall continue in full force and effect.
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