Exhibit (10) R
Option Agreement dated August 21, 1995
with J. Xxxxxxxx Xxxx
Exhibit (10) R
MERCANTILE BANKSHARES CORPORATION
This Option Agreement is entered into this 21st day of August 21,
1995, by and between Mercantile Bankshares Corporation ("MBC"), a Maryland
corporation, and J. Xxxxxxxx Xxxx ("Grantee").
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, the definitions set forth in
Sections 1.1 through 1.27 shall be applicable.
Section 1.1 Affiliate. "Affiliate" shall mean: (i) any
corporation in which MBC owns, directly or indirectly, within the meaning of
ss.424(f) of the Code, fifty percent (50%) or more of the total combined voting
power of all classes of stock of such corporation on a Grant Date; and (ii) any
parent corporation of MBC, within the meaning of ss.424(e) of the Code.
Section 1.2 Agreement. "Agreement" shall mean this Option
Agreement and shall include the applicable provisions of the Plan which is
hereby incorporated into and made a part of the Agreement.
Section 1.3 Anniversary Date. "Anniversary Date" shall mean the
first four (4) anniversaries of the Grant Date.
Section 1.4 Anniversary Date Option Amount. "Anniversary Date
Option Amount" shall mean twenty-five percent (25%) of the Option Amount.
Section 1.5 Base Year. "Base Year" shall mean the 1994 calendar
year.
Section 1.6 Board. "Board" shall mean the Board of Directors of
MBC.
Section 1.7 Calculation Year. "Calculation Year" shall mean the
calendar year ending immediately prior to the calendar year in which an
Anniversary Date falls.
Section 1.8 Code. "Code" shall mean the Internal Revenue Code of
1986, as amended, and any regulations issued thereunder.
Section 1.9 Committee. "Committee" shall mean the Committee
appointed pursuant to Section 3.3 of the Plan.
Section 1.10 Disability. "Disability" shall mean Grantee's
inability to engage in any substantial gainful activity, by reason of any
medically determined physical or mental impairment that may be expected to
result in death or that has lasted or may be expected to last for a continuous
period of not less than twelve (12) months, as determined by the Committee based
on proof of the existence of such disability in such form and manner and at such
times as the Committee may require.
Section 1.11 Earnings. "Earnings" shall mean the earnings per
share of Stock for a calendar year (including the Base Year), as reported in the
Annual Report to Shareholders for such calendar year and as may be adjusted by
the Committee in its discretion.
Section 1.12 Earnings AGR. "Earnings AGR" shall mean the annual
rate of growth in Earnings, expressed as a percentage (rounded up to the nearest
whole percent), determined in accordance with the following formula:
(A-B) (100)
-----------
B
where "A" equals Earnings for the Calculation Year, and "B" equals Earnings for
the calendar year immediately preceding the Calculation Year.
Section 1.13 Earnings CGR. "Earnings CGR" shall mean the
compounded growth rate of Earnings and shall be determined by calculating the
rate of interest at which Earnings for the Base Year would have to be invested
to yield the Earnings for
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the Calculation Year in question, assuming such interest compounded annually
during the period commencing with the first day of the calendar year immediately
succeeding the Base Year and ending on the last day of such Calculation Year.
Section 1.14 Exercise Date. "Exercise Date" shall mean the date
on which the Committee receives the written notice required under Section 3.4 of
this Agreement that Grantee has exercised the Option.
Section 1.15 Fair Market Value. "Fair Market Value" of a share of
Stock on the Grant Date or Exercise Date, as the case may be, shall mean the
last reported sale price per share of Stock, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on a national securities exchange or included for quotation on the
NASDAQ-National Market, or if the Stock is not so listed or admitted to trading
or included for quotation, the last quoted price, or if the Stock is not so
quoted, the average of the high bid and low asked prices, regular way, in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System or, if such system is no longer in
use, the principal other automated quotations system that may then be in use or,
if the Stock is not quoted by any such organization, the average of the closing
bid and asked prices, regular way, as furnished by a professional market maker
making a market in the Stock as selected in good faith by the Committee or by
such other source or sources as shall be selected in good faith by the
Committee; provided, however, that the determination of Fair Market Value shall
be made by the Committee in good faith in accordance with the Code. If, as the
case may be, the Grant Date or the Exercise Date is not a trading day, the
determination shall be
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made as of the next preceding trading day. As used herein, the term "trading
day" shall mean a day on which public trading of securities occurs and is
reported in the principal consolidated reporting system referred to above, or if
the Stock is not listed or admitted to trading on a national securities exchange
or included for quotation on the NASDAQNational Market, any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are closed.
Section 1.16 Grant Date. "Grant Date" shall mean March 14, 1995.
Section 1.17 Incentive Stock Option. "Incentive Stock Option"
shall mean an option as defined in ss.422(b) of the Code.
Section 1.18 Net Operating Income. "Net Operating Income" shall
mean the dollar amount of net after tax operating income for a calendar year for
Mercantile-Safe Deposit and Trust Company, as reported to the Board and as may
be adjusted by the Committee in its discretion.
Section 1.19 Net Operating Income AGR. "Net Operating Income AGR"
shall mean the annual rate of growth in Net Operating Income, expressed as a
percentage (rounded up to the nearest whole percent), determined in accordance
with the following formula:
(A-B)(100)
----------
B
where "A" equals Net Operating Income for the Calculation Year, and "B" equals
Net Operating Income for the calendar year immediately preceding the Calculation
Year.
Section 1.20 Net Operating Income CGR. "Net Operating Income CGR"
shall mean the compounded growth rate of Net Operating Income, determined by
calculating the rate of interest at which Base Year Net Operating Income would
have to be invested
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to yield the Net Operating Income for the Calculation Year in question, assuming
such interest compounded annually during the period commencing with the first
day of the calendar year immediately succeeding the Base Year and ending on the
last day of such Calculation Year.
Section 1.21 Normal Retirement Date. "Normal Retirement Date"
shall mean the first day of the month coincident with or next following the date
on which Grantee attains age sixty-five (65).
Section 1.22 Option. "Option" shall mean an option to acquire
Stock and, as is hereby designated by the Committee in accordance with and to
the fullest extent permitted by the Code and other applicable law, shall mean an
Incentive Stock Option.
Section 1.23 Option Amount. "Option Amount" shall mean 30,000
shares of Stock.
Section 1.24 Option Price. "Option Price" shall mean the price
per share of Stock at which the Option may be exercised.
Section 1.25 Plan. "Plan" shall mean the Mercantile Bankshares
Corporation Omnibus Stock Plan.
Section 1.26 Retirement. "Retirement" shall mean early or normal
retirement in accordance with the terms of The Cash Balance Plan for Employees
of Mercantile Bankshares Corporation and Participating Affiliates, as it may
exist from time to time, or any successor plan.
Section 1.27 Stock. "Stock" shall mean shares of MBC's authorized
but unissued common stock, par value of Two Dollars ($2.00) per share.
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ARTICLE 2
GRANT OF OPTION
Section 2.1 Grant of Option. On the Grant Date, MBC, pursuant to
the Plan, granted to Grantee an Option to purchase shares of Stock, not to
exceed the Option Amount, at an Option Price of Twenty-one Dollars and
Eighty-seven and one-half Cents ($21.875) per share.
Section 2.2 Term of Option. The Option granted pursuant to
Section 2.1 shall expire on March 13, 2005, unless all or a portion of the
Option terminates earlier pursuant to other provisions of this Agreement.
ARTICLE 3
RESTRICTIONS ON EXERCISE
Section 3.1 Termination of Option or Portion of Option. The
Option shall become exercisable, if at all, only on an Anniversary Date. The
extent to which the Option shall become exercisable on any Anniversary Date
shall be determined pursuant to the provisions of Sections 3.2 and 3.3 of the
Agreement; provided that, except as otherwise provided under Section 4.4 of the
Agreement, in no case shall the Option become exercisable on any one (1)
Anniversary Date for more than the Anniversary Date Option Amount. To the extent
that, by application of the provisions of Sections 3.2 or 3.3 of the Agreement,
no portion of the Option becomes exercisable on an Anniversary Date, or the
Option becomes exercisable for less than the Anniversary Date Option Amount on
such Anniversary Date, the Option shall terminate with respect to that number of
shares of Stock that is equal to the difference between the Anniversary Date
Option Amount and the number of shares of Stock as to which the Option becomes
exercisable on such Anniversary Date.
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Section 3.2 Attainment of Earnings CGR. No portion of the Option
shall become exercisable on an Anniversary Date unless the Earnings CGR for the
Calculation Year applicable to that Anniversary Date equals or exceeds five
percent (5%). If such Earnings CGR equals or exceeds five percent (5%), the
portion of the Anniversary Date Option Amount that shall become exercisable on
such Anniversary Date shall be determined pursuant to the provisions of Section
3.3 of the Agreement.
Section 3.3 Determination of Exercisable Portion of Anniversary
Date Option Amount.
(a) Amounts Dependent on Earnings. Subject to the provisions of the
first sentence of Section 3.2 of the Agreement, if the Earnings AGR for the
Calculation Year applicable to an Anniversary Date equals or exceeds six percent
(6%), Grantee may, on and after such Anniversary Date, exercise the Option with
respect to that percentage of the Anniversary Date Option Amount that
corresponds to the Earnings AGR in the following chart.
Anniversary Date Option
Earnings AGR Amount That May Be Exercised
------------ ----------------------------
6% 10%
7% 20%
8% 30%
9% 40%
10% 50%
(b) Amounts Dependent on Net Operating Income. Subject to the provisions
of the first sentence of Section 3.2 of the Agreement, if, and only if, the Net
Operating Income CGR for the Calculation Year applicable to an Anniversary Date
equals or exceeds five percent (5%) and if the Net Operating Income AGR for such
Calculation Year equals or exceeds six percent (6%), Grantee may, on and after
such Anniversary
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Date, exercise the Option with respect to that percentage of the Anniversary
Date Option Amount that corresponds to the Net Operating Income AGR in the
following chart.
Anniversary Date Option
Net Operating Income AGR Amount That May Be Exercised
------------------------ ----------------------------
6% 10%
7% 20%
8% 30%
9% 40%
10% 50%
Section 3.4 Manner of Exercise. The Option may be exercised, in
whole or in part, by delivering written notice to the Committee in such form as
the Committee may require from time to time. Such notice shall specify the
number of shares of Stock subject to the Option as to which the Option is being
exercised, and shall be accompanied by full payment of the Option Price of the
shares of Stock as to which the Option is being exercised. Payment of the Option
Price may be made either in cash or shares of Stock (including shares of Stock
acquired upon the exercise of an option) having a total Fair Market Value on the
Exercise Date equal to the Option Price multiplied by the number of shares of
Stock as to which the Option is being exercised. The Option may be exercised
only in multiples of whole shares and no partial shares shall be issued. If, as
of the fourth Anniversary Date, the total number of shares as to which the
Option is exercisable includes a partial share, the Option for such partial
share, whether or not previously designated by the Committee as an Incentive
Stock Option, shall be deemed to be a non-Incentive Stock Option. On the first
date, on or after the fourth Anniversary Date, that the Fair Market Value of a
share of Stock equals or exceeds the Option Price, Grantee shall be deemed to
have simultaneously exercised the Option for such partial share and to have sold
same to MBC for such Fair Market
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Value. MBC shall remit to Grantee, in payment of the purchase price of such
partial share, the excess, if any, of the Fair Market Value of such partial
share over the Option Price.
Section 3.5 Issuance of Shares and Payment of Cash upon Exercise.
Upon exercise of the Option, in whole or in part, in accordance with the terms
of the Agreement, and upon payment of the Option Price for the shares of Stock
as to which the Option is exercised, MBC shall issue to Grantee the number of
shares of Stock so paid for, in the form of fully paid and non-assessable Stock.
Section 3.6 Loan or Guaranty. Solely at the discretion of the
Committee, and upon Grantee's written request, MBC may, but shall not be
required to, assist Grantee in the exercise of the Option by making a loan to
Grantee or by guaranteeing a third-party loan to Grantee. Such a loan or
guaranty shall be conditioned upon prior receipt by the Committee of
satisfactory assurances of Grantee's net worth and repayment ability. Subject to
Regulations G and U of the Federal Reserve Board, any such loan or guaranty may
be in an amount up to one hundred percent (100%) of the Option Price of the
shares of Stock as to which the Option is being exercised. All loans shall bear
interest at a rate determined by the Committee based upon loans of similar
maturity, but in no event shall the interest rate be less than the rate
necessary to avoid the imputation of interest or original issue discount under
the provisions of the Code. All other terms of any loan or guaranty (including
terms of repayment) shall be established by the Committee, subject to
Regulations G and U of the Federal Reserve Board and all other applicable
federal and state laws and regulations.
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ARTICLE 4
TERMINATION OF OPTION
Section 4.1 Termination of Employment For Reason Other Than
Death, Disability, or Retirement. The Option granted to Grantee shall terminate
with respect to any shares of Stock as to which the Option has not been
exercised as of the date Grantee is no longer employed by either MBC or an
Affiliate for any reason other than Grantee's death, Disability or Retirement,
whether or not the Option was exercisable on such date.
Section 4.2 Upon Grantee's Death. In the event that upon
Grantee's date of death any portion of the Option is exercisable, then Grantee's
executor, personal representative or the person to whom the Option shall have
been transferred by will or the laws of descent and distribution, as the case
may be, may exercise all or any part of the portion of the Option exercisable as
of the date of death, provided such exercise occurs within twelve (12) months
after the date Grantee dies, but not later than the end of the stated term of
the Option. Upon Grantee's death, the portion of the Option, if any, that has
not become exercisable as of the date of Grantee's death shall terminate on the
date of Grantee's death.
Section 4.3 Termination of Employment By Reason of Disability. In
the event that Grantee ceases to be an employee of MBC or an Affiliate by reason
of Disability, the portion of the Option, if any, that has become exercisable as
of the date of Disability may be exercised in whole or in part at any time on or
after the date of Disability, but not later than the end of the stated term of
the Option or as otherwise provided by the provisions of Section 4.2 of the
Agreement. Upon Grantee's termination of employment by reason of Disability, the
portion of the Option, if any, that has not become
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exercisable as of the date of Disability shall terminate on the date of
Disability.
Section 4.4 Termination of Employment By Reason of Retirement.
(a) Early Retirement.
(i) Exercisable Portion of Option. In the event that
Grantee ceases to be an employee of MBC or an Affiliate by reason of Retirement
at any time prior to Grantee's Normal Retirement Date, the portion of the
Option, if any, that has become exercisable as of the date of Retirement may be
exercised in whole or in part at any time on or after the date of Retirement,
but not later than the end of the stated term of the Option or as otherwise
provided by the provisions of Section 4.2 of the Agreement.
(ii) Non-exercisable Portion of Option. In the event
that Grantee ceases to be an employee of MBC or an Affiliate by reason of
Retirement at any time prior to Grantee's Normal Retirement Date, the portion of
the Option, if any, that has not become exercisable as of the date of Retirement
shall terminate on the date of Retirement.
(b) Normal Retirement Date.
(i) Exercisable Portion of Option. In the event that
Grantee ceases to be an employee of MBC or an Affiliate by reason of Retirement,
the portion of the Option, if any, that has become exercisable as of the date of
Retirement may be exercised in whole or in part at any time on or after the date
of Retirement, but not later than the end of the stated term of the Option or as
otherwise provided by the provisions of Section 4.2 of the Agreement.
(ii) Non-exercisable Portion of Option. In the event
that upon the occurrence of Grantee's Normal Retirement Date all or a portion of
the Option has not become exercisable solely because one (1) or more of the
first four (4) Anniversary
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Dates have not occurred (hereinafter referred to as the "Remaining Portion"),
then such Remaining Portion shall become exercisable, if at all, on the
Anniversary Date coincident with or immediately following Grantee's Normal
Retirement Date. In all cases, the Remaining Portion shall not include any
portion of the Option that has terminated pursuant to the provisions of Sections
3.1, 3.2, 3.3, 4.1, 4.2 or 4.3 of the Agreement. The extent to which the
Remaining Portion shall become exercisable shall be determined pursuant to the
provisions of Sections 3.2 and 3.3 of the Agreement; provided, however, that the
term "Remaining Portion" shall be substituted for the term "Anniversary Date
Option Amount" in all places noted therein. The amount, if any, of the Remaining
Portion of the Option that becomes exercisable on such Anniversary Date may be
exercised in whole or in part at any time on or after such Anniversary Date, but
not later than the end of the stated term of the Option or as otherwise provided
by the provisions of Section 4.2 of the Agreement. Notwithstanding anything in
the Agreement to the contrary, the provisions of this Section 4.4(b)(ii) of the
Agreement shall apply as of the occurrence of Grantee's Normal Retirement Date,
regardless of whether Grantee continues to be an employee of MBC or an Affiliate
after such date.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Non-Guarantee of Employment. Nothing in the Plan or
the Agreement shall be construed as a contract of employment between MBC (or an
Affiliate) and Grantee, or as a contractual right of Grantee to continue in the
employ of MBC or an Affiliate, or as a limitation of the right of MBC or an
Affiliate to discharge Grantee at any time.
Section 5.2 No Rights of Stockholder. Grantee shall not have
any of the rights
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of a stockholder with respect to the shares of Stock that may be issued upon the
exercise of the Option until such shares of Stock have been issued to him upon
the due exercise of the Option.
Section 5.3 Notice of Disqualifying Disposition. If Grantee makes
a disposition (as that term is defined in ss.424(c) of the Code) of any shares
of Stock acquired pursuant to the exercise of an Incentive Stock Option within
two (2) years of the Grant Date or within one (1) year after the shares of Stock
are transferred to Grantee, Grantee shall notify the Committee of such
disposition in writing.
Section 5.4 Withholding Taxes. MBC or any Affiliate shall have
the right to deduct from any compensation or any other payment of any kind
(including withholding the issuance of shares of Stock) due Grantee the amount
of any federal, state or local taxes required by law to be withheld as the
result of the exercise of the Option or the disposition (as that term is defined
in ss.424(c) of the Code) of shares of Stock acquired pursuant to the exercise
of the Option. In lieu of such deduction, MBC may require Grantee to make a cash
payment to MBC or an Affiliate equal to the amount required to be withheld. If
Grantee does not make such payment when requested, MBC may refuse to issue any
Stock certificate under the Plan until arrangements satisfactory to the
Committee for such payment have been made.
Section 5.5 Limitation on Exercise. Notwithstanding anything in
the Plan or Agreement to the contrary, the Committee may restrict the right to
exercise the Option to the extent that such exercise would trigger an "excess
parachute payment" (as that term is defined in ss.280G(b) of the Code) unless
Grantee shall have the right to receive such an excess parachute payment under
an agreement with MBC or an Affiliate.
Section 5.6 Nontransferability of Option. The Option shall be
nontransferable
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otherwise than by will or the laws of descent and distribution. During the
lifetime of Grantee, the Option may be exercised only by Grantee or, during the
period Grantee is under a legal disability, by Grantee's guardian or legal
representative.
Section 5.7 Agreement Subject to Charter and By-Laws. This
Agreement is subject to the Charter and By-Laws of MBC, and any applicable
federal or state laws, rules or regulations.
Section 5.8 Gender. As used herein the masculine shall include
the feminine as the circumstances may require.
Section 5.9 Headings. The headings in the Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
the Agreement.
Section 5.10 Notices. All notices and other communications made
or given pursuant to the Agreement shall be in writing and shall be sufficiently
made or given if hand delivered or mailed by certified mail, addressed to
Grantee at the address contained in the records of MBC or an Affiliate, or to
MBC for the attention of its Secretary at its principal office.
ARTICLE 6
SCOPE OF AGREEMENT
Section 6.1 Entire Agreement; Modification. The Agreement
contains the entire agreement between the parties with respect to the subject
matter contained herein and may not be modified, except as provided in the Plan
or in a written document signed by each of the parties hereto.
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Section 6.2 Counterparts. The Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed the Agreement as of
the date first above written.
ATTEST: MERCANTILE BANKSHARES CORPORATION
/s/ Xxxx X. X'Xxxxxx, Xx. By:/s/ Xxxxxx X. Xxxx, Xx.
------------------------- --------------------------
Xxxx X. X'Xxxxxx, Xx. Xxxxxx X. Xxxx, Xx.
WITNESS: GRANTEE
/s/ Xxxxx X. Xxxx /s/ J. Xxxxxxxx Xxxx
----------------- --------------------
J. Xxxxxxxx Xxxx
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