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EXHIBIT 10.37
SECOND AMENDMENT
TO
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
OMNIBUS STOCK AWARD PLAN
THIS SECOND AMENDMENT TO RESOURCE BANCSHARES MORTGAGE GROUP, INC.
OMNIBUS STOCK AWARD 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. Omnibus Stock Award Plan (the "Plan") for the benefit of certain of its
employees; and
WHEREAS, in Section 7.2 of the Plan, the Company reserved the right to
amend the Plan by action of a committee (the "Committee") designated by the
Board to administer the Plan (the "Committee"); 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:
"(y) "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(y); 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(d) of the Plan is amended by adding the following
sentence to the first paragraph thereof:
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"Notwithstanding the foregoing, (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 any vesting
provisions set forth in the related Option Agreement."
3. Subsection 4.1(e) 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 shareholders, in the event of a
Business Combination that does not result in a Change of Control, each
outstanding Option and Stock Appreciation Right shall pertain to and
apply to the securities or other consideration that a holder of the
number of shares of Common Stock subject to the Option or to which the
Stock Appreciation Right relates 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
and Stock Appreciation Right shall terminate; provided, however, that
each holder thereof 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 or Stock Appreciation Right in whole or
in part without regard to any installment provision that might be
contained in the applicable Agreement. The last sentence shall apply to
any outstanding Options which are ISOs to the extent permitted by Code
Section 422(d), and such outstanding ISO's in excess thereof shall,
immediately upon the occurrence of such Business Combination, be
treated for all purposes of the Plan as NQSOs and shall be immediately
exercisable as such as provided in such sentence. Notwithstanding the
foregoing, in no event shall any Option be exercisable after the date
of termination of the exercise period of such Option."
4. Section 5.3(a) of the Plan is amended by deleting therefrom in its
entirety the first sentence thereof and inserting in lieu thereof the following:
"Stock Appreciation Rights shall not be exercisable during the
first six months after their date of grant; provided, however, that
notwithstanding the foregoing, Stock Appreciation Rights shall become
exercisable (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 a Change of Control of the type
set forth in paragraph (c) of the definition of Change of Control."
5. Section 6.1 of the Plan is amended by inserting the following
sentence in the second paragraph thereof immediately following the first
sentence of such paragraph:
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"Notwithstanding the foregoing, the Restriction Period shall
end (i) upon 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 a Change of Control of the type set forth in
paragraph (c) of the definition of Change of Control."
6. Section 6.1 of the Plan is further amended by deleting therefrom in
its entirety the last paragraph thereof and inserting in lieu thereof the
following:
"If any change is made in the Common Stock by reason of any Business
Combination that does not result in a Change of Control or any
recapitalization, stock dividend, split up or combination of shares,
then any shares received by an Employee with respect to Restricted
Stock shall be subject to the same restrictions applicable to such
Restricted Stock and the certificates representing such shares shall be
deposited with the Company."
7. 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.