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EXHIBIT 10.23(B)
INCENTIVE STOCK OPTION AGREEMENT
Pursuant to
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
OMNIBUS STOCK AWARD PLAN
This Incentive Stock Option Agreement is entered into as of the 10th
day of January, 2000, between Resource Bancshares Mortgage Group, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxx (the "Optionee").
1. Definitions.
Capitalized terms used in this Option Agreement but not defined herein
are used herein as defined in the Plan. In addition, throughout this Option
Agreement, the following terms shall have the meanings indicated:
(a) "Exercise Date" shall have the meaning indicated in
paragraph 3 hereof.
(b) "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. Notwithstanding the previous sentence, in the
case of an Option granted to a 10% Stockholder, the Option Period shall mean the
period commencing on the date of this Option Agreement and ending at the close
of the Company's business five years from the date hereof.
(c) "Plan" shall mean the Resource Bancshares Mortgage Group,
Inc. Amended and Restated Omnibus Stock Award Plan.
(d) "Securities Act" shall mean the Securities Act of 1933, as
amended.
2. Award of Option.
Effective upon the date hereof, and subject to the terms and conditions
set forth herein and in the Plan, the Company has awarded to the Optionee the
option to purchase from the Company, at an exercise price of $4.50 per share, up
to but not exceeding in the aggregate 100,000 shares of Common Stock. The
Company intends the exercise price to be at least 100% of the Fair Market Value
of the Shares of Common Stock subject to the Option as of the date of granting
the Option. In the case of an Option granted to a 10% Stockholder, the exercise
price of each share of Common Stock covered by the Option is at least 110% of
the Fair Market Value per share of Common Stock on the date of grant of the
Option. It is intended that this Option qualify to the extent possible as an
ISO. The Company shall have no liability if this Option shall not qualify as an
ISO, but this Option shall continue in full force and effect as an NQSO
notwithstanding such failure to so qualify.
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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, to
the extent set forth in the schedule below.
then the maximum percentage
of the Option Shares that
may be purchased through
if the Exercise Date is: such Exercise Date is:
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earlier than July 1, 2000, 20%
July 1, 2000 or thereafter,
but not later than December 31, 2000, 40%
January 1, 2001 or thereafter,
but not later than June 30, 2001, 60%
July 1, 2001 or thereafter,
but not later than December 30, 2001, 80%
December 31, 2001 or thereafter, 100%
The Exercise Dates contained herein are intended to comply with Code Section
422(d). In the event the aggregate Fair Market Value of the Common Stock with
respect to ISOs exercisable for the first time by Optionee during any calendar
year exceeds $100,000, the Optionee shall give notice promptly (as provided in
Section 6(e)) of such fact to the Company. The number of shares of Common Stock
subject to this Option and the per share exercise price under each outstanding
Option shall be adjusted, to the extent the Committee deems appropriate, as
provided in Section 4.1(e) of the Plan. Sections 4.1(e), 4.1(f), 4.1(g) and
4.1(i) of the Plan are incorporated in this Option Agreement by reference as if
fully set forth herein.
(b) Notwithstanding Section 3(a), the Option shall terminate
and may not be exercised if the Optionee ceases to be employed by the Company,
except: (1) that, if such Optionee's employment terminates for any reason other
than conduct that in the judgment of the Committee involves dishonesty or action
by the Optionee that is detrimental to the best interest of the Company, then
the Optionee may at any time within three months after termination of his or her
employment exercise his or her Option but only to the extent the Option was
exercisable by him or her on the date of termination of employment unless
termination of employment is due to retirement at or after the Optionee attains
age sixty-five, in which event the Option shall be exercisable with respect to
all Option Shares; (2) that, if such Optionee's employment terminates on account
of total and permanent disability, then the Optionee may at any time within one
year after termination of his or her employment exercise his or her Option with
respect to all Option Shares; and (3) that, if such Optionee dies while in the
employ of the Company, or within the three or twelve month period following
termination of his or her employment as described in clause (1) or
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(2) above, then his or her Option may be exercised at any time within twelve
months 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 with respect to all Option Shares.
(c) 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.
(d) Upon exercise of the Option, the Option exercise price
shall be payable in United States dollars, in cash (including by check) or
(unless the Committee otherwise prescribes) in shares of Common Stock owned by
the Optionee for a period exceeding 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. The Option shall be deemed
to be exercised on the date (the "Exercise Date") that the Company receives full
payment of the exercise price for the number of shares for which the Option is
being exercised.
(e) During the lifetime of the Optionee, the Option shall be
exercisable only by the Optionee and shall not be assignable or transferable by
the Optionee and no person shall acquire any rights therein. The Option may be
transferred by will or the laws of descent and distribution.
4. Compliance with the Securities 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 requirement of any governmental authority having jurisdiction in
the premises shall require 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 issuance 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.
5. Resolution of Disputes.
Any dispute or disagreement that arises under, or as a result of, or
pursuant to, this Option Agreement shall be determined by the Committee in its
absolute and uncontrolled discretion, and any such determination or other
determination by the Committee under or pursuant to this Option Agreement, and
any interpretation by the Committee of the terms of this Option Agreement, shall
be conclusive as to all persons affected thereby.
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6. 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; Relationship to Plan. The Optionee
acknowledges that he or she has received a copy of the Plan. This Option
Agreement, together with the Plan, constitutes the entire agreement of the
parties with respect to the Option and supersedes any previous agreement,
whether written or oral, with respect thereto. This Option Agreement has been
entered into in compliance with the terms of the Plan; to the extent that any
interpretive conflict may arise between the terms of this Option Agreement and
the terms of the Plan, the terms of the Plan shall control.
(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 or assigns.
(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 certified mail:
(i) if to the Company, to the following address:
Resource Bancshares Mortgage Group, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chairman
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 exclusive
jurisdiction and venue of the Court of Common Pleas in Richland County, South
Carolina for purposes of adjudicating any issue arising hereunder.
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(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 provision was omitted.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the day and year first above written.
RESOURCE BANCSHARES MORTGAGE GROUP, INC.
By: ____________________________________
OPTIONEE:
-----------------------------------(SEAL)
Name: Xxxxxxx X. Xxxxxxx
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