Exhibit 10 W
SUPPLEMENTAL RETIREMENT AGREEMENT
THIS SUPPLEMENTAL RETIREMENT AGREEMENT, entered into this 2nd day of
February, 2001, by and between MERCANTILE BANKSHARES CORPORATION ("Mercshares")
and MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY ("Merc-Safe"), both corporations
of the State of Maryland, Two Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
hereinafter collectively referred to as "Employer," and XXXXXX X. XXXXX, III,
hereinafter referred to as "Executive."
WHEREAS, Employer has employed Executive pursuant to an Executive
Employment Agreement entered into on the 2nd day of February, 2001; and
WHEREAS, pursuant to such Executive Employment Agreement, Employer has
represented to Executive that he will be eligible to participate in a
supplemental executive retirement plan; and
WHEREAS, Employer and Executive wish to set forth the specific terms of
such supplemental executive retirement plan.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and undertakings hereinafter set forth, and other good and valuable
consideration, receipt of which is hereby acknowledged, Employer and Executive
hereby agree as follows:
SECTION 1 - DEFINITIONS
1.1 Definitions
(a) Actuarial Assumptions
"Actuarial Assumptions" shall mean, with respect to mortality, 1983
Group Mortality Table, and with respect to interest, 7.5%, or such other
assumptions as may be described in the Agreement.
(b) Actuarial Equivalent
"Actuarial Equivalent" shall mean a benefit of equivalent dollar value
on a specified date, computed on the basis of Actuarial Assumptions.
(c) Agreement
"Agreement" shall mean the Supplemental Retirement Agreement between
Executive and Employer, as set forth herein, as amended from time to time.
(d) Beneficiary
"Beneficiary" shall mean such person, persons, entity or entities as
may be designated by Executive to receive benefits after the death of Executive,
all as provided for in Section 3.
(e) Cash Balance Plan
"Cash Balance Plan" shall mean the Cash Balance Plan for Employees of
Mercantile Bankshares Corporation and Participating Affiliates, as amended from
time to time.
(f) Cash Balance SERP
"Cash Balance SERP" shall mean the Mercantile Bankshares Corporation
and Participating Affiliates Supplemental Cash Balance Executive Retirement
Plan, as amended from time to time.
(g) Code
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(h) Committee
"Committee" shall mean the Compensation Committee of Mercantile
Bankshares Corporation.
(i) Compensation
"Compensation" shall mean Executive's base salary and such bonus as
may be received pursuant to Employer's Annual Incentive Compensation Plan or as
may otherwise be paid by Employer, in each case prior to reductions for elective
contributions under Sections 401(k), 125 or 132(f) of the Code, or under any
nonqualified deferred compensation plan of Employer.
(j) Disability or Disabled
"Disability" or "Disabled" shall mean disability as defined under the
long-term disability plan of Mercshares.
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(k) Early Retirement Date
"Early Retirement Date" shall mean the first day of the month
coincident with or next following the date on which Executive attains age 60.
(l) Final Average Compensation
"Final Average Compensation" shall mean Executive's average annual
compensation during the three consecutive 12-month periods contained within the
last five consecutive 12-month periods immediately prior to the month in which
Executive's termination of employment occurs, affording the highest such Final
Average Compensation. In the event that Executive's entire period of employment
consists of less than three consecutive 12-month periods, his Final Average
Compensation shall be determined by averaging (on an annual basis) his
Compensation during his entire period of employment with Employer.
(m) 401(k) SERP
"401(k) SERP" shall mean the Mercantile Bankshares Corporation and
Participating Affiliates Supplemental 401(k) Executive Retirement Plan, as
amended from time to time.
(n) Late Retirement Date
"Late Retirement Date" shall mean the first day of the month
coincident with or next following the date on which Executive's termination of
employment occurs after his Normal Retirement Date.
(o) Normal Retirement Date
"Normal Retirement Date" shall mean the first day of the month
coincident with or next following the date on which Executive attains age 65.
(p) Primary Social Security Benefit
"Primary Social Security Benefit" shall mean the benefit to which
Executive is entitled at age 65 as if he terminated employment at age 65. If
Executive terminates employment prior to age 65, his Primary Social Security
Benefit commencing at age 65 shall be estimated by assuming no future earnings
and by using the applicable provisions of the federal Social Security Act as in
effect on the date Executive terminates employment. The Primary Social Security
Benefit shall be determined without taking into consideration any benefits to
which he may be entitled by reason of his dependents, his spouse's age, or any
disability which he, his spouse or any dependent may suffer, or any income
earned by him which may reduce the amount of federal Social Security benefits to
which he might otherwise be entitled.
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(q) Retirement Benefit
"Retirement Benefit" shall mean Executive's supplemental retirement
benefit, as described in Section 2.1.
(r) Thrift Plan
"Thrift Plan" shall mean the Employees' Thrift Plan of Mercantile
Bankshares Corporation and Participating Affiliates, as amended from time to
time.
(s) Year of Service
"Year of Service" shall mean each full and fractional 12-month period,
measured from the date on which Executive commenced employment with Employer,
during which Executive works on a full-time basis for Employer. In addition, a
Year of Service shall include each full and fractional 12-month period, measured
from the date on which Executive attained age 25 and ending on the date
Executive commenced employment with Employer.
SECTION 2 - AMOUNT AND FORM OF BENEFITS
2.1 Normal Retirement Date
(a) Upon Executive's retirement on his Normal Retirement Date, he shall
receive a Retirement Benefit which shall be an annual benefit, payable monthly,
commencing on his Normal Retirement Date and continuing for his life in an
amount equal to the sum of (1), (2) and (3) (the "gross benefit") minus the sum
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of (4), (5), (6), (7) and (8) (the "offsets"), where:
(1) is 0.5% of his Final Average Compensation multiplied by his first
10 Years of Service;
(2) is 1% of his Final Average Compensation multiplied by his next 15
Years of Service;
(3) is 3% of his Final Average Compensation multiplied by his next 15
Years of Service;
(4) is Executive's benefit under the Cash Balance Plan;
(5) is Executive's benefit under the Thrift Plan;
(6) is Executive's benefit under the 401(k) SERP;
(7) is Executive's benefit under the Cash Balance SERP; and
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(8) is Executive's Primary Social Security Benefit.
(b) The offsets provided for in Sections 2.1(a)(4) through (8) above shall
be implemented by reducing on a dollar for dollar basis the annual benefit
payable to Executive pursuant to Sections 2.1(a)(1) through (3) above. Each
such offset shall be expressed as an annual straight life annuity payment
commencing on Executive's Normal Retirement date regardless of whether Executive
elects to receive such benefit in the form of a straight life annuity or to
commence receiving such benefit on his Normal Retirement Date. The annual life
annuity payments which are the Actuarial Equivalent of the benefits described in
Sections 2.1(a)(5) through (7), and thus the offsets to be used pursuant to this
Section 2.1, shall be calculated pursuant to the Actuarial Assumptions. Such
offsets described in Sections 2.1(a)(5) through (7) shall be calculated as if
amounts which had previously been withdrawn or paid from any such arrangement
prior to Executive's Normal Retirement Date had not been so withdrawn or paid;
this calculation shall be done by determining the Actuarial Equivalent of any
such withdrawal or payment as of the Participant's Normal Retirement Date and
then by applying such Actuarial Equivalent as an offset as described above.
2.2 Early Retirement Date
Upon Executive's termination of employment on or after his Early Retirement
Date (but prior to his Normal Retirement Date), he shall receive a Retirement
Benefit, as described in Section 2.1, which shall be an annual benefit, payable
monthly, commencing on the first day of the month following his termination of
employment and continuing for his life, calculated as follows: Executive's
gross benefit, as described in Sections 2.1(a)(1) through (3), shall be reduced,
in order to reflect early payment, by 4% for each full year (and proportionately
for each fractional year) by which his benefit commencement date precedes his
Normal Retirement Date. The offsets, as described in Sections 2.1(a)(4) through
(8), to be used in such calculation shall be determined as of the date
Executive's benefit commences. For purposes of calculating the offset described
in Section 2.1(a)(4), the early retirement reduction factors in the Cash Balance
Plan shall be utilized to reflect early payment. For purposes of calculating
the offset described in Section 2.1(a)(8), Actuarial Assumptions shall be
utilized to reflect early payment.
2.3 Late Retirement Date
If Executive is permitted to continue in employment subsequent to his
Normal Retirement Date, then upon his termination of employment after his Normal
Retirement Date, he shall receive a Retirement Benefit, as described in Section
2.1, which shall be an annual benefit, payable monthly, commencing on his Late
Retirement Date and continuing for his life. The Retirement Benefit payable to
Executive at his Late Retirement Date shall be the Actuarial Equivalent of what
Executive's Retirement Benefit would have been had his employment terminated on
his Normal Retirement Date and had he commenced receiving his Retirement
Benefit on his Normal Retirement Date.
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2.4 Other Termination of Employment
Upon Executive's termination of employment prior to his Early Retirement
Date, he shall be entitled to receive a Retirement Benefit, as described in
Section 2.1, which shall be an annual benefit, payable monthly, commencing on
his Normal Retirement Date and continuing for his life in an amount calculated
pursuant to Section 2.1 hereof; provided, however, that the offsets described in
Sections 2.1(a)(5) through (7) to be applied at Executive's Normal Retirement
Date shall be fixed as of the date of Executive's termination of employment and
shall be the Actuarial Equivalent of such offsets determined as of Executive's
termination of employment. The Committee, in its sole discretion, may determine
to commence Executive's Retirement Benefit at any time after he attains age 60
(but prior to his Normal Retirement Date), in which case his Retirement Benefit
shall be calculated as provided in Section 2.2; provided, however, that the
offsets described in Sections 2.1(a)(5) through (7) to be applied at Executive's
benefit commencement date shall be fixed as of the date of Executive's
termination of employment and shall be the Actuarial Equivalent of such offsets
determined as of Executive's termination of employment.
2.5 Disability
(a) In the event Executive incurs a Disability prior to the termination of
his employment, and thereby ceases to be actively employed, he will receive
benefits under the long-term disability plan of Mercshares until he is no longer
Disabled or until he attains the age of 65, whichever is sooner. If Executive
remains Disabled until age 65, or ceases to be Disabled but does not return to
active employment in his current position, he shall receive a Retirement Benefit
under this Agreement, commencing on what would have been his Normal Retirement
Date (or, in the Committee's sole discretion, on any date after what would have
been his Early Retirement Date, assuming the long-term disability plan of
Mercshares had ceased paying benefits to Executive at such time), based on his
Final Average Compensation and Years of Service as of the date he incurred a
Disability and calculated pursuant to Section 2.4.
(b) If Executive's Disability ends and he returns to active employment in
his current position, he will again commence accruing benefits under this
Agreement and the calculation of his Retirement Benefit shall be governed by the
terms of this Agreement; provided, however, that the period of time during which
he was Disabled shall not count as Years of Service hereunder; and further
provided, that the period of time during which he was Disabled shall not be
deemed to interrupt his consecutive Years of Service for purposes of calculating
his Final Average Compensation.
2.6 Form of Benefit
In lieu of a straight life annuity form of benefit, Executive may elect,
with the consent of the Committee, to receive his Retirement Benefit in one of
the following forms:
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(a) Joint and Survivor Option
(1) Executive may elect to receive, in lieu of a straight life
annuity, a reduced annual benefit, payable monthly, which is the
Actuarial Equivalent of such straight life annuity, payable
during Executive's life and continuing after his death at a full,
75%, 66-2/3%, or 50% rate (according to the election of
Executive) to the Executive's surviving Beneficiary for the
remainder of such Beneficiary's life. For purposes of the Joint
and Survivor Option, only one natural person may be designated as
a beneficiary.
(2) If Executive's Beneficiary dies before commencement of benefit
payment to Executive, the election of a joint and survivor option
shall thereupon become void. If Executive's Beneficiary dies
after commencement of benefit payments to Executive, but before
the date of Executive's death, the election of a joint and
survivor option shall remain effective and Executive shall
receive the reduced retirement benefit payable to him under such
option.
(b) Guaranteed Period Option
(1) Executive may elect to receive, in lieu of a straight life
annuity, a reduced annual benefit, payable monthly, which is the
Actuarial Equivalent of such straight life annuity, payable
during Executive's life and guaranteed to continue to Executive
or his designated Beneficiary for a period certain of 5, 10, 15
or 20 years, according to the election of Executive, after the
commencement of benefit payments to Executive, regardless of
whether Executive survives such period certain.
(2) If Executive's Beneficiary dies before Executive, Executive shall
have the right to designate another Beneficiary. If Executive's
Beneficiary dies after Executive and after benefits have
commenced, benefits for the remainder of the period certain will
be continued to the estate of the Beneficiary, unless Executive
shall have designated another Beneficiary to receive such
benefits.
SECTION 3 - DEATH BENEFITS
3.1 Death Before Commencement of Retirement Benefit
If Executive dies prior to the commencement of his Retirement Benefit, his
Beneficiary shall be entitled to receive, commencing on the first day of the
month next following Executive's death, a death benefit. The death benefit
shall initially be calculated, pursuant to Section 2 hereof, as if Executive had
terminated employment as of
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the date of his death and commenced receiving his Retirement Benefit as of such
date in the form of a straight life annuity; for purposes of reducing
Executive's gross benefit in the event Executive dies prior to attaining age 60,
the reduction percentage described in Section 2.2 shall be used to reduce such
benefit to an age-60 benefit and Actuarial Assumptions shall be used thereafter
to reduce such benefit to a benefit commencing as of the date of his death. Such
straight life annuity shall then be converted, pursuant to Actuarial
Assumptions, to a 10-year period certain annuity, and Executive's Beneficiary
shall receive monthly payments of such 10-year period certain annuity until the
end of the term. If Executive's Beneficiary dies before the end of the 10-year
term, benefits for the remainder of the period certain will be continued to the
estate of the Beneficiary, unless the Executive shall have designated another
Beneficiary to receive such benefits.
3.2. Death After Commencement of Retirement Benefit
If Executive dies subsequent to the commencement of his Retirement Benefit
in accordance with a method described in Section 2, the death benefit, if any,
payable to his Beneficiary shall be distributed in accordance with the method of
distribution already in effect.
3.3 Designation of Beneficiary
(a) Executive shall have the right to designate a Beneficiary to receive
the sums to which he may be entitled upon his death. Such designation of
Beneficiary shall be in writing and delivered to the Committee, and shall be
effective upon receipt by the Committee. Executive shall have the right to
change such designation by notice in writing to the Committee. Any such change
shall be deemed to revoke all prior designations.
(b) If Executive shall fail to validly designate a Beneficiary or if no
designated Beneficiary survives Executive, any sums payable upon his death shall
be paid to the person or persons in the first of the following classes of
successive preference beneficiaries surviving at the death of Executive:
Executive's (1) surviving spouse, (2) lineal descendants, per stirpes, and (3)
estate. The Committee shall decide what Beneficiaries, if any, have been
validly designated, and its decision shall be binding and conclusive on all
persons.
SECTION 4 - OBLIGATION TO BE UNSECURED
It is understood and agreed that Employer's obligations under this
Agreement shall not be secured in any manner. Neither Executive nor any
Beneficiary shall be deemed to have any property interest, legal or equitable,
in any asset of Employer, and neither Executive's right to his Retirement
Benefit nor any other Beneficiary's right to benefits under this Agreement shall
be greater than, nor shall it have any preference or priority over, the rights
of any unsecured general creditor of Employer. Anything in this
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Section to the contrary notwithstanding, Employer may establish a rabbi trust to
accumulate assets for the purpose of providing benefits under this Agreement.
SECTION 5 - ALIENATION OR ENCUMBRANCE
No payments, benefits or rights under this Agreement shall be subject in
any manner to anticipation, sale, transfer, assignment, mortgage, pledge,
encumbrance, charge or alienation by Executive or other Beneficiary.
SECTION 6 - CLAIMS PROCEDURE
6.1 Benefit Claim
Any claim for a benefit under this Agreement by Executive or other
Beneficiary shall be made in writing and delivered to the Committee at
Mercshares' principal office. If Executive or other Beneficiary believes he has
incorrectly been denied any benefit under this Agreement, either in whole or in
part, the Committee shall advise the claimant in writing of the proper amount of
the benefit, if any, and the specific reasons for the denial. The Committee
shall also furnish the claimant at that time with a written notice containing:
(a) A specific reference to pertinent provisions of the Agreement;
(b) A description of any additional material or information necessary for
the claimant to perfect this claim, if possible, and an explanation of why such
material or information is needed; and
(c) An explanation of the following claims review procedure.
6.2 Claims Review Procedure
Within 60 days of receipt of the information described above, the claimant
shall, if further review is desired, file a written request for reconsideration
with the Committee at Mercshares' principal office. So long as the claimant's
request for review is pending (including such 60-day period), the claimant or
his duly authorized representative may review pertinent documents and may submit
issues and comments in writing to the Committee.
6.3 Final Decision
A final decision shall be made by the Committee within 60 days of the
filing by the claimant of the request for reconsideration; provided, however,
that if the Committee in its discretion, feels that a hearing with the claimant
or his representative present is necessary or desirable, this period shall be
extended an additional 60 days. The decision by the Committee shall be conveyed
to the claimant in writing and shall include specific reasons for the decision,
written in a manner calculated to be understood by the claimant,
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with specific references to the pertinent provisions of the Agreement on which
the decision is based. This claims review procedure shall not deprive Executive
of any judicial remedy to which he may otherwise be entitled.
6.4 Obligations of Committee
The members of the Committee shall use ordinary care and diligence in the
performance of their duties. They shall be entitled to rely conclusively, and
shall be fully protected in any action or omission taken by them in good faith
reliance, upon the advice or opinions of any persons, firms or agents retained
by them, including, but not limited to, accountants, actuaries, counsel and
other specialists. Nothing contained herein shall preclude Employer from
indemnifying any member for all actions under this Agreement, or from purchasing
liability insurance to protect such members with respect to their duties
pursuant to this Agreement.
SECTION 7 - NONGUARANTEE OF EMPLOYMENT
Nothing contained in this Agreement shall be construed as a contract of
employment between Employer and Executive, or as a right of Executive to be
continued in the employment of Employer or as a limitation of the right of
Employer to discharge Executive, with or without cause, at any time.
SECTION 8 - INCAPACITY OF RECIPIENT
If any person entitled to a distribution under this Agreement is deemed by
the Committee to be incapable of personally receiving and giving a valid receipt
for such payment, then, unless and until claim therefor shall have been made by
a duly appointed guardian or other legal representative of such person, the
Committee may provide for such payment or any part thereof to be made to any
other person or institution then contributing toward or providing for the care
and maintenance of such person. Any such payment shall be a payment for the
account of such person and a complete discharge of any liability of the Employer
therefor.
SECTION 9 - WITHHOLDING
Employer shall have the right to deduct from any payment made hereunder any
taxes required by law to be withheld from Executive or any Beneficiary with
respect to such payment.
SECTION 10 - COOPERATION OF PARTIES
Each party to this Agreement agrees to perform any and all acts and execute
any and all documents and papers which are necessary or desirable for carrying
out this Agreement or any of its provisions.
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SECTION 11 - BINDING ON SUCCESSORS
11.1 With Respect to Executive
This Agreement is personal to Executive and may not be assigned by him.
This Agreement shall, however, inure to the benefit of, and be enforceable by,
Executive's personal representatives.
11.2 With Respect to Employer
This Agreement shall insure to the benefit of and be binding upon Employer
and its successors and assigns, whether by merger, consolidation,
reorganization, share exchange, transfer of assets or otherwise. Employer shall
require any business successors to assume and agree to be bound by and perform
this Agreement in the same manner and to the same extent as Employer would be
required to perform if no such succession had taken place.
SECTION 12 - MODIFICATION AND WAIVER
This Agreement may not be modified, altered or amended except by a
subsequent written instrument executed by all of the parties hereto. No waiver
of any provision of this Agreement shall be binding unless evidenced by a
subsequent written instrument executed by that party against whom it is sought
to be enforced.
SECTION 13 - GENERAL PROVISIONS
13.1 Plurals and Gender
Where appearing in this Agreement, the masculine gender shall include the
feminine and neuter genders, and the singular shall include the plural, and vice
versa, unless the context clearly indicates a different meaning.
13.2 Counterparts
This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original.
13.3 Entire Agreement
This Agreement represents the entire agreement between the parties, and all
prior representations, agreements and understandings between the parties as to
its subject matter are of no further force or validity.
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13.4 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of the State of Maryland, without reference to principles of conflict of
laws, except to the extent superseded by the Employee Retirement Income Security
Act of 1974, as amended from time to time.
13.5 Severability
In the event that one or more provisions of this Agreement are found to be
unenforceable or illegal, the remaining provisions of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Supplemental Retirement
Agreement the day and year first above written.
WITNESS:
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxx, III
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XXXX X. XXXXXX XXXXXX X. XXXXX, III
ATTEST: MERCANTILE-SAFE DEPOSIT
AND TRUST COMPANY
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxx Xxxxxxx
------------------------------- -----------------------(SEAL)
XXXX X. XXXXXX X. XXXXXXX XXXXXXX
Secretary Chief Executive Officer
ATTEST: MERCANTILE BANKSHARES
CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxx Xxxxxxx
------------------------------- -----------------------(SEAL)
XXXX X. XXXXXX X. XXXXXXX XXXXXXX
Secretary President and Chief Executive Officer
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