Exhibit 10.10(b)


 


Form of Amendment No. 1 to SERP Agreement


 


 


AMENDMENT
NO. 1


TO


DIRECTOR
SUPPLEMENTAL RETIREMENT AGREEMENT


 


 


THIS AMENDMENT
NO. 1 (the “Amendment”) is made and entered into as of                     ,
2003 by and between NetBank (the “Bank”) and                                     
(the “Director”) and amends that certain Director Supplemental Retirement
Agreement (the “Agreement”) dated                              ,
2002 between the Bank and the Director.


 


WHEREAS, the
Bank and the Director desire to reflect more clearly the intent of the
Agreement and desire to clarify certain ambiguities in the Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Bank and the Director agree to amend the Agreement as
follows effective as of April 1, 2002:


 


1.  The first paragraph of the Agreement is
hereby amended to reflect that the Bank is organized and existing under the
laws of the United States of America.


 


2.  The second paragraph of the Agreement is
hereby deleted and the following is hereby inserted in lieu thereof:


 


WHEREAS, the
Director is now serving on the Board of Directors of the Bank and has for many
years faithfully served as a director of the Bank and/or the holding company of
the Bank and/or one or more subsidiaries of the Bank.  It is the consensus of the Board of Directors
of the Bank (hereinafter referred to as the “Board”) that the Director’s
services have been of exceptional merit, in excess of the compensation paid and
an invaluable contribution to the profits and position of the Bank.  The Board further believes that the Director’s
experience, knowledge of corporate affairs, reputation and industry contacts
are of such value, and the Director’s services provided to the Bank and/or the
holding company of the Bank and/or one or more subsidiaries of the Bank so
essential to the Bank’s further growth and profits, that it would suffer severe
financial loss should the Director terminate his or her services to the Bank
and/or the holding company of the Bank and/or one or more subsidiaries of the
Bank; and


 


3.  Subparagraph I(C) is hereby amended by
deleting the words “with the Bank” and inserting in lieu thereof the following:


 


, following
which he no longer serves as a director of any of the Bank, the holding company
of the Bank or any subsidiary of the Bank,


 





















 


4.  Subparagraph I(D) is hereby amended by
deleting all of that Subparagraph following the words “by the Director” and
inserting in lieu thereof the following:


 


, the failure
of the Director to be reelected as a director without Cause (as defined below)
or removal of the Director from office without Cause, prior to age sixty (60),
following any of which he no longer serves as a director of any of the Bank,
the holding company of the Bank or any subsidiary of the Bank.


 


5.  Subparagraph I(H) is hereby deleted and the
following is hereby inserted in lieu thereof:


 


Change of
Control:


 


(i)  The acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (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 (A) the then outstanding shares of
common stock of NetBank, Inc. (the “Outstanding NetBank, Inc. Common Stock”) or
(B) the combined voting power of the then outstanding voting securities of
NetBank, Inc. entitled to vote generally in the election of directors (the “Outstanding
NetBank, Inc. Voting Securities”); provided, however, that for purposes of this
Subparagraph I(H)(i), the following acquisitions shall not constitute a Change
of Control: (W) any acquisition directly from NetBank, Inc. or any corporation
controlled by NetBank, Inc., (X) any acquisition by NetBank, Inc. or any
corporation controlled by NetBank, Inc., (Y) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by NetBank, Inc. or any
corporation controlled by NetBank, Inc. or (Z) any acquisition by any
corporation pursuant to a transaction which complies with clauses (A), (B) and
(C) of Subparagraph I(H)(iii); or


 


(ii)  That individuals who, as of the date hereof,
constitute the Board of Directors of NetBank, Inc. (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board of
Directors of NetBank, Inc. (the “Board”); provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by NetBank Inc.’s shareholders, 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


 


(iii) Consummation
of a reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of NetBank, Inc. or the acquisition of
assets of another corporation (a “Business Combination”), in 


 


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each case,
unless, following such Business Combination, (A) all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding NetBank, Inc. Common Stock and Outstanding NetBank, Inc. 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 NetBank, Inc. or all or substantially all of NetBank Inc.’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 NetBank, Inc. Common Stock and Outstanding
NetBank, Inc. Voting Securities, as the case may be, (B) no Person (excluding
any corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of NetBank, Inc. 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 or 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 NetBank,
Inc. or all or substantially all of NetBank’s assets either directly or through
one or more subsidiaries) except to the extent that such ownership existed
prior to the Business Combination and (C) 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


 


(iv)  Approval by the shareholders of NetBank, Inc.
of a complete liquidation or dissolution of NetBank, Inc.; or


 


(v)  The Bank shall cease to be a Majority-Owned
Subsidiary (as that term is defined in Rule 405 under the Securities Act of
1933) of NetBank, Inc.


 


6.  Subparagraph I(L) is hereby deleted and the
following is hereby inserted in lieu thereof:


 


Early
Retirement Date:


 


Early
Retirement Date shall mean the voluntary resignation of service by the
Director, the failure of the Director to be reelected as a director without
Cause (as defined below) or removal of the Director from office without Cause,
provided the Director has obtained age sixty (60), following any of which he


 


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no longer
serves as a director of any of the Bank, the holding company of the Bank or any
subsidiary of the Bank.


 


7.  Paragraph I is hereby amended by adding the
following Subparagraph (M):


 


Cause:


 


Cause shall
mean (i) the Director’s conviction of a felony; (ii) the request or demand for
removal of the Director from office by any bank regulatory authority having
jurisdiction over the Bank; or (iii) the determination by at least two-thirds
of the directors of the Bank then in office, excluding the Director, that the
Director’s conduct has been inimical to the best interests of the Bank.


 


8.  Paragraph I is hereby amended by adding the
following Subparagraph (N):


 


Date of First
Appointment:


 


Date of First
Appointment with respect to the Director shall be                    ,
the date on which he was first appointed a director of the Bank or Resource Bancshares
Mortgage Group, Inc., a subsidiary of the Bank, as the case may be, whichever
shall first occur.


 


9.  Subparagraph II(A) is hereby amended by
deleting the words “of the Bank” in the first sentence thereof.


 


10.  Subparagraph II(B) is hereby amended by
deleting the words “Subject to Subparagraph II(D), should a Director suffer a
Termination of Service,” in the first sentence thereof and inserting in lieu
thereof the following:


 


Subject to
Subparagraph II(D), should a Termination of Service occur with respect to the
Director,


 


11.  Subparagraph II(D) is hereby deleted and the
following is hereby inserted in lieu thereof:


 


Removal for
Cause:


 


Should the
Director be removed from office or not be reelected for Cause at any time, all
benefits under this Agreement shall be forfeited.  If a dispute arises as to the existence of “Cause,”
such dispute shall be resolved by arbitration as set forth in this Agreement.


 


12.  Subparagraph II(E) is hereby amended by
deleting the words “on the Board” in the first sentence thereof and inserting
the following after “disability,” in the first sentence thereof:


 


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following
which he no longer serves as a director of any of the Bank, the holding company
of the Bank or any subsidiary of the Bank,


 


13.  Subparagraph II(G) is hereby deleted and the
following is hereby inserted in lieu thereof:


 


Subject to
Subparagraph II(D), should an Early Retirement Date occur with respect to the
Director, the Director may elect within six (6) months following such Early
Retirement Date to receive the balance in the Accrued Liability Retirement
Account on such Early Retirement Date divided by the number of years from such
Early Retirement Date to the Projected Mortality Age paid in annual installments
as set forth herein until the Projected Mortality Age.  Said payments shall commence six (6) months
following the election of the Director, if any, and shall be made annually
thereafter as soon as practicable after each anniversary of such Early Retirement
Date through the Benefit Year in which the Director attains his Projected
Mortality Age.  Upon completion of the
aforestated payments and in conjunction with the completion of said payments,
the Index Retirement Benefit shall be paid to the Director as set forth in
Subparagraph II(A) hereinabove and subject to the same terms and conditions
therein and shall be paid until the Director’s death.  If the Director fails to make the election
referred to in this Subparagraph II(G), such Early Retirement Date shall be
treated as if it were a Termination of Service and the Director shall receive
payments as provided in Subparagraph II(D).


 


14.  Paragraph III is hereby amended by deleting
the words “any Director” in the third sentence of the second paragraph thereof
and inserting in lieu thereof the words “the Director”.


 


15.  Paragraph IV is hereby deleted and the
following is hereby inserted in lieu thereof:


 


Following a
Change of Control (Subparagraph I[H]), if a Termination of Service
(Subparagraph I[D]) or Early Retirement Date (Subparagraph I[L]) occurs with
respect to the Director, then the Director shall receive the benefits promised
under this Agreement upon obtaining Normal Retirement Age, as if the Director
had been continuously serving the Bank, the holding company of the Bank or a
subsidiary of the Bank until the Director’s Normal Retirement Age.  The Director will also remain eligible for
all promised death benefits under this Agreement.


 


16.  Subparagraph V(J) is hereby amended by
deleting the words “nor limit the right of the Bank to discharge the Director
with or without Cause” in the first sentence thereof and inserting in lieu
thereof the following:


 


nor limit the
ability to remove the Director from office with or without Cause nor create any
obligation to reelect the Director.


 


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17.  Subparagraph VI(B) is hereby amended by
deleting the fourth paragraph and inserting in lieu thereof the following:


 


Where a
dispute arises as to whether the Director has been removed from office or has
not been reelected as a director for “Cause,” such dispute shall likewise be
submitted to arbitration as above described and the parties hereto agree to be
bound by the decision thereunder.


 


18.  Paragraph VII is hereby deleted in its
entirety.


 


19.  As amended hereby, the Agreement shall
continue in full force and effect.


 


IN WITNESS WHEREOF, the parties hereto
acknowledge that each has carefully read this Amendment and executed the
original thereof as of the first day set forth hereinabove, and that upon
execution, each has received a conforming copy.


 


	
   

  	
   

  	
  NETBANK

  
	
  Witness:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Director

  
							



 


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