As filed with the Securities and Exchange Commission on November 4, 1999.
Registration No. 333-_______
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
MERCANTILE BANKSHARES CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 52-0898572
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
MERCANTILE BANK & TRUST BUILDING
TWO HOPKINS PLAZA
P. O. BOX 1477
BALTIMORE, MD 21203
(410) 237-5900
(Address and Telephone Number of Principal Executive Offices)
MERCANTILE BANKSHARES CORPORATION 1999 OMNIBUS STOCK PLAN
(Full title of the Plan)
ALAN D. YARBRO, ESQ.
GENERAL COUNSEL AND SECRETARY
MERCANTILE BANKSHARES CORPORATION
MERCANTILE BANK & TRUST BUILDING
TWO HOPKINS PLAZA
P. O. BOX 1477
BALTIMORE, MD 21203
(410) 237-5900
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
ELIZABETH R. HUGHES, ESQ.
VENABLE, BAETJER AND HOWARD, LLP
1800 MERCANTILE BANK & TRUST BUILDING
TWO HOPKINS PLAZA
BALTIMORE, MD 21201
(410) 244-7400
---------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Amount to Proposed maximum Proposed Amount of
Title of Securities be offering price maximum registration
to be registered registered(1) per share(2) offering price(2) fee(3)
- ------------------------------ --------------------- ------------------------ -------------------- -------------------
Common Stock, 3,000,000 $35.4375 $106,312,500 $29,554.88
$2.00 per share Par Value Shares
============================== ===================== ======================== ===================== ==================
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement also covers such additional shares of Common Stock as may become
issuable pursuant to stock splits, stock dividends and the anti-dilution
provisions of the Mercantile Bankshares Corporation 1999 Omnibus Stock Plan. The
shares covered in this Registration Statement include 1,352,041 shares
previously registered but unissued pursuant to a Registration Statement on Form
S-8 (No. 33-44375) filed by the Registrant on December 6, 1991.
(2) Calculated solely for the purpose of computing the registration fee pursuant
to Rules 457(c) and (h), based upon the average of the high and low prices of
the Registrant's Common Stock reported on the Nasdaq National Market on November
1, 1999.
(3) $4,518.00 was previously paid by the Registrant in connection with 1,352,041
shares registered, but not issued, under the Registrant's Registration Statement
(No. 33-44375) on Form S-8 filed on December 6, 1991, and $25,036.88 is paid
herewith.
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<PAGE>
PART I
Documents containing the information specified in Part I of this Form
S-8 have been and/or will be sent or given to employees as specified by Rule
428(b)(1) of the Securities Act of 1933 (the "Securities Act"). In accordance
with the instructions to Part I of Form S-8, such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute the prospectus as required by Section
10(a) of the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents previously filed with the Commission
by Mercantile Bankshares Corporation (the "Company" or "Registrant") are
incorporated herein by reference: (a) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998; (b) the Company's Report on Form
8-K filed on March 10, 1999; (c) the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1999; (d) the Company's Report on Form 8-K filed on
June 11, 1999; (e) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999; and (f) the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A under the Exchange
Act, including any amendment or report filed to update the description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Certain legal matters in connection with this Registration
Statement will be passed upon for the Registrant by Venable, Baetjer and Howard,
LLP, Baltimore, Maryland. William J. McCarthy, a principal of William J.
McCarthy, P.C., which is a partner of Venable, Baetjer and Howard, LLP, is a
director of the Company.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The Maryland General Corporation Law ("MGCL") provides that a
corporation may indemnify any director made a party to a proceeding by reason of
service in that capacity unless it is established that: (1) the act or omission
of the director was material to the matter giving rise to the proceeding and (a)
was committed in bad faith or (b) was the result of active and deliberate
dishonesty, or (2) the director actually received an improper personal benefit
in money, property or services, or (3) in the case of any criminal proceeding,
the director had reasonable cause to believe that the act or omission was
unlawful. To the extent that a director has been successful in defense of any
proceeding, the MGCL provides that he shall be
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<PAGE>
indemnified against reasonable expenses incurred in connection therewith. A
Maryland corporation may indemnify its officers to the same extent as its
directors and to such further extent as is consistent with law.
The Registrant's Charter provides, as to indemnification:
(a) The liability of directors and officers to Mercshares or
its stockholders for money damages shall be limited to the maximum extent that
the liability of directors and officers of Maryland corporations is permitted to
be limited by Maryland law. This limitation on liability shall apply to events
occurring at the time a person serves as a director or officer of Mercshares
whether or not such person is a director or officer at the time of any
proceeding in which liability is asserted.
(b) To the maximum extent permitted by Maryland law,
Mercshares shall indemnify its currently acting and its former directors against
any and all liabilities and expenses incurred in connection with their services
in such capacities, shall indemnify its currently acting and its former officers
to the full extent that indemnification shall be provided to directors, and
shall indemnify, to the same extent, its employees and agents and persons who
serve and have served, at its request as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture or other
enterprise. Mercshares shall advance expenses to its directors, officers and
other person referred to above to the extent permitted by Maryland law.
Mercshares' Board of Directors may by By-law, resolution or other agreement make
further provision for indemnification of directors, officers, employees and
agents to the extent permitted by Maryland law.
(c) References to Maryland law shall include the MGCL as from
time to time amended. Neither the repeal or amendment of this paragraph, nor any
other amendment to the Articles of Incorporation, shall eliminate or reduce the
protection afforded to any person by the foregoing provisions of this paragraph
with respect to any act or omission which shall have occurred prior to such
repeal or amendment.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
4.1 - Articles of Incorporation
A. Articles of Incorporation effective May 27, 1969 (Incorporated
by reference to the Registrant's Registration Statement on
Form S-1, File No. 2-39545, Exhibit 3-A(1)).
B. Articles of Amendment effective June 6, 1969 (Incorporated by
reference to the Registrant's Registration Statement on Form
S-1, File No. 2-39545, Exhibit 3-A(2)).
C. Articles Supplementary effective August 28, 1970 (Incorporated
by reference to the Registrant's Registration Statement on
Form S-1, File No. 2-39545, Exhibit 3-A(3)).
-3-
<PAGE>
D. Articles of Amendment effective December 14, 1970
(Incorporated by reference to the Registrant's Registration
Statement on Form S-1, File No. 2-39545, Exhibit 3-A(4)).
E. Articles Supplementary effective May 10, 1971 (Incorporated by
reference to the Registrant's Registration Statement on Form
S-1, File No. 2-39545, Exhibit 3-A(5)).
F. Articles Supplementary effective July 30, 1971 (Incorporated
by reference to the Registrant's Registration Statement on
Form S-1, File No. 2-41379, Exhibit 3-A(6)).
G. Articles of Amendment effective May 8, 1986 (Incorporated by
reference to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1993, Exhibit 3-A(7), Commission
File No. 0-5127).
H. Articles of Amendment effective April 27, 1988 (Incorporated
by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1993, Exhibit 3-A(8),
Commission File No. 0-5127).
I. Articles Supplementary effective September 13, 1989
(Incorporated by reference to the Registrant's Form 8-K filed
September 27, 1989, Exhibit B attached to Exhibit 4-A,
Commission File No. 0-5127).
J. Articles Supplementary effective January 3, 1990 (Incorporated
by reference to the Registrant's Form 8-K filed January 9,
1990, Exhibit B attached to Exhibit 4-A, Commission File No.
0-5127).
K. Articles of Amendment effective April 26, 1990 (Incorporated
by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1990, Exhibit 3-A(11),
Commission File No. 0-5127).
L. Articles of Amendment effective April 30, 1997 (Incorporated
by reference to the Registrant's Registration Statement on
Form S-4, File No. 333-43651, Exhibit 3(i)(L)).
M. Articles Supplementary effective June 9, 1999 (filed
herewith).
N. Articles Supplementary effective September 30, 1999 (filed
herewith).
O. Amendment No. 1 to Registrant's Registration Statement on Form
8-B, amending description of securities (Incorporated by
reference to Form 8 filed December 20, 1991, Commission File
No. 0-5127).
4.2 - Bylaws (filed herewith).
4.3 - Rights Agreement dated as of June 8, 1999, between the
Company and the Rights Agent (incorporated by reference to
Form 8-K of Registrant, Exhibit (4) filed June 11, 1999,
Commission File No. 0-5127).
4.4 Mercantile Bankshares Corporation 1999 Omnibus Stock Plan
(filed herewith).
5.1 - Opinion of Venable, Baetjer and Howard, LLP (filed herewith).
-4-
<PAGE>
23.1 - Consent of PricewaterhouseCoopers, LLP (filed herewith).
23.2 - Consent of Venable, Baetjer and Howard, LLP (contained in
Exhibit 5.1).
24.1 - Power of Attorney (filed herewith).
Item 9. Undertakings.
-------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
the Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against
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<PAGE>
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer of controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant, Mercantile Bankshares Corporation certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Baltimore
in the State of Maryland on this 4th day of November, 1999.
MERCANTILE BANKSHARES CORPORATION
/s/ H. Furlong Baldwin
----------------------
H. Furlong Baldwin
Chairman of the Board, President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities indicated on this 4th day of November, 1999.
Signature Capacity
- --------- --------
/s/ H. Furlong Baldwin Chairman, President and Chief Executive Officer
- ---------------------- (Principal Executive Officer)
H. Furlong Baldwin
/s/ Terry L. Troupe Chief Financial Officer (Principal Financial
- ------------------- Officer)
Terry L. Troupe
/s/ Diana E. Nelson Controller and Chief Accounting Officer
- ------------------- (Principal Accounting Officer)
Diana E. Nelson
A Majority of the Board of Directors:
Christian H. Poindexter, Freeman A. Hrabowski, III,
William R. Brody, Robert A. Kinsley, George L.
Bunting, Jr., Mary Junck, Cynthia A. Archer,
Thomas M. Bancroft, Jr., William J. McCarthy,
Richard O. Berndt
By: /s/ H. Furlong Baldwin
- -----------------------------------
H. Furlong Baldwin
For Himself and as Attorney-in-fact
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<PAGE>
EXHIBIT INDEX
-------------
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
4.1.M Articles Supplementary effective June 9, 1999
4.1.N Articles Supplementary effective September 9,
1999
4.2 Bylaws
4.4 Mercantile Bankshares Corporation 1999
Omnibus Stock Plan
5.1 Opinion of Venable, Baetjer and Howard, LLP
23.1 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
-8-
Exhibit 4.1.M
MERCANTILE BANKSHARES CORPORATION
ARTICLES SUPPLEMENTARY
MERCANTILE BANKSHARES CORPORATION, a Maryland corporation
having its principal office in Baltimore City, Maryland, (hereinafter called
the "Corporation"), hereby certifies to the State Department of Assessments
and Taxation of Maryland (the "Department") that:
FIRST: By Resolution of its Board of Directors on June 8,
1999, the Corporation elected to become subject to all of the provisions of
Subtitle 8 of Title 3 of the Maryland General Corporation Law (the 'MGCL")
contained in Chapter 300 of the 1999 Laws of Maryland, including: Section
3-803, which provides for a classified board of directors of three classes
each having a three year term; Section 3-804 which provides for at least a
two-thirds vote of the stockholders for the removal of directors, and then
only for cause in accordance with Section 2-406(b)(3) of the MGCL, and vests
in the Directors the power to fix the number of directors and to fill
vacancies on the board of directors; and Section 3-805 which requires a
majority vote of the stockholders to call a special meeting of the
stockholders and specifies certain procedural requirements in connection
with such special meetings of the stockholders. In the event of any
inconsistency with the charter or bylaws of the Corporation, the aforesaid
MGCL provisions will govern.
SECOND: By Resolution of the Board of Directors on June 8,
1999, the Corporation classified its Board of Directors into three classes in
accordance with SS. 3-803 of the MGCL as follows: Class I Directors shall
initially be Thomas M. Bancroft, Jr., George L. Bunting, Jr., Robert A. Kinsley,
William J. McCarthy and Christian H.
<PAGE>
Poindexter and shall have an initial term continuing until the annual meeting of
stockholders in 2000 and until their successors are elected and qualify; Class
II Directors shall initially be Cynthia A. Archer, Richard D. Berndt, William R.
Brody and Morton B. Plant and shall have an initial term continuing until the
annual meeting of stockholders in 2001 and until their successors are elected
and qualify; and Class III Directors shall initially be H. Furlong Baldwin,
Freeman A. Hrabowski, Mary Junck, Morris W. Offit and Donald J. Shepard and
shall have an initial term continuing until the annual meeting of stockholders
in 2002 and until their successors are elected and qualify. At each annual
meeting of the stockholders of the Corporation, the successors to the class of
Directors whose term expires at that meeting shall be elected to hold office for
a term continuing until the annual meeting of stockholders held in the third
year following the year of their election and until their successors are elected
and qualify. The classification set forth above may be changed from time-to-time
by vote of the Board of Directors to reflect such matters as increase or
decrease in the number of directors and so that each class, to the extent
possible, will have the same number of Directors.
IN WITNESS WHEREOF, Mercantile Bankshares Corporation has
caused these presents to be signed in its name and on its behalf by its Chairman
of the Board, President and Chief Executive Officer and witnessed by its
Secretary as of this 8th day of June, 1999, and the undersigned officers
acknowledge that these Articles Supplementary are the act of the Corporation,
that to the best of their knowledge, information and belief all matters and
facts set forth herein relating to the authorization
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<PAGE>
and approval of these Articles are true in all material respects, and that this
statement is made under the penalties of perjury.
WITNESS: MERCANTILE BANKSHARES CORPORATION
/s/ Alan D. Yarbro By: /s/ H. F. Baldwin
- ------------------ ----------------------------------------
Alan D. Yarbro H. Furlong Baldwin, Chairman of the Board,
Secretary President and Chief Executive Officer
-3-
Exhibit 4.1.N
MERCANTILE BANKSHARES CORPORATION
ARTICLES SUPPLEMENTARY
MERCANTILE BANKSHARES CORPORATION, a Maryland corporation
having its principal office in Baltimore City, Maryland (hereinafter called the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland (the "Department") that:
FIRST: Pursuant to authority contained in the Charter of the
Corporation, the Board of Directors had, pursuant to Articles Supplementary,
filed with the Department on September 13, 1989, previously classified Eight
Hundred Thousand (800,000) shares of Preferred Stock of the Corporation as
"Class A Preferred Stock," none of which shares have been issued. Thereafter, in
Articles Supplementary filed with the Department on January 2, 1990, the Board
of Directors classified 1,600,000 shares of the Corporation's authorized but
unissued Preferred Stock as Class A Preferred Stock, and changed the
preferences, rights, voting powers, restrictions, dividends, qualifications and
terms and conditions of the Class A Stock to those expressed in such Articles
Supplementary. Pursuant to authority contained in the Charter for the
classification and reclassification of unissued shares of Preferred Stock, the
Board of Directors has now exercised its powers to change the preferences,
rights, voting powers, restrictions, dividends, qualifications and terms and
conditions of the 1,600,000 authorized but unissued shares of the Company's
Class A Preferred Stock to those expressed in these Articles Supplementary, with
the effect that these Articles Supplementary shall supercede
<PAGE>
any prior Articles Supplementary classifying shares of Preferred Stock of the
Corporation.
SECOND: A description of the Class A Preferred Stock, and of
the preferences, rights, voting powers, restrictions, dividends, qualifications
and terms and conditions thereof, is as follows:
Section 1. Class A Preferred Stock.
- ---------- ------------------------
The Class A Preferred Stock shall have no par value, but
shall have a Stated Value of One Thousand Dollars ($1,000) per share. The Board
of Directors may from time to time classify additional unissued shares of
Preferred Stock as Class A Preferred Stock.
Section 2. Dividends and Distributions.
- ---------- ----------------------------
The holders of record of full or fractional shares of Class
A Preferred Stock shall be entitled to receive, when and as declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the last day of March, June, September and December
in each year (each such date being referred to herein as a "Quarterly Dividend
Payment Date"), or such other payment date as shall be fixed by the board of
Directors within fifteen days before or after such Quarterly Payment Date,
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Class A Preferred Stock (the "Original
Issue Date"), in an amount per share (rounded to the nearest cent) equal to, but
no more than, the greater of (i) $10.00 or (ii) subject to the provision for
adjustment hereinafter set forth, one thousand times the aggregate per share
amount of all cash dividends, and one thousand times the aggregate per share
amount (payable in kind) of all non-cash
-2-
<PAGE>
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock of the Corporation
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the Original Issue
Date. In the event the Corporation shall at any time on or after the Original
Issue Date declare or pay any dividend on the shares of Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding Common Stock (by reclassification or otherwise than by
payment of a dividend of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to which holders of shares of
Class A Preferred Stock are entitled (without giving effect to such event) under
clause (ii) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
The Corporation shall declare a dividend or distribution on
the Class A Preferred Stock as provided in the paragraph above immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $10.00 per share on the Class A
Preferred Stock shall nevertheless be payable on such
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<PAGE>
subsequent Quarterly Dividend Payment Date. The record date for any such
dividend or distribution shall be determined by the Board of Directors.
Dividends on shares of Class A Preferred Stock shall be cumulative and shall
accrue without interest (i) in the case of a dividend payable pursuant to clause
(i) of the first paragraph of this Section 2, from the payment date fixed by the
Board of Directors in accordance with this Section 2 (or if no such payment date
is fixed, from the applicable Quarterly Dividend Payment Date), or (ii) in the
case of a dividend payable on Class A Preferred Stock by reason of a dividend or
distribution payable on Common Stock, from the payment date fixed by the Board
of Directors with respect to such dividend or distribution payable on Common
Stock.
Section 3. Redemption.
- --------- -----------
The Corporation, at the option of the Board of Directors,
may at any time redeem all and may from time to time redeem any part of the
outstanding shares of Class A Preferred Stock at a redemption price per share
equal to the Market Price (as hereinafter defined) per share of the Common Stock
on the Trading Day (as hereinafter defined) immediately prior to the date fixed
for redemption, multiplied by one thousand, plus in each case a sum equal to any
dividends accrued or declared but unpaid. In case of the redemption of a part
only of the outstanding shares of Class A Preferred Stock, the shares to be
redeemed shall be either redeemed pro rata or selected by lot in such manner as
the Board of Directors shall determine.
In the event the Corporation shall at any time on or after
the Original Issue Date declare or pay any dividend on the shares of Common
Stock payable in shares of
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<PAGE>
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of Class A Preferred
Stock were entitled hereunder (without giving effect to such event), shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
As used herein, the term "Market Price" per share of the
Common Stock on any date of determination shall mean the average of the daily
closing prices per share of the Common Stock (determined as described below) on
each of the 20 consecutive Trading Days through and including the Trading Day
immediately preceding such date; provided, however, that if the Company shall at
any time (i) declare a dividend on the Common Stock payable in Common Stock,
(ii) subdivide the outstanding Common Stock, (iii) combine the outstanding
Common Stock into a smaller number of shares of Common Stock or (iv) issue any
shares in a reclassification of the Common Stock, and such event or an event of
a type analogous to any such event shall have caused the closing prices used to
determine the Market Price on any Trading Days not to be fully comparable with
the closing price on such date of determination, each such closing price so used
shall be appropriately adjusted in order to make it fully comparable with the
closing price on such date of determination. The closing price per share of the
Common
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<PAGE>
Stock on any date shall be the last sale price, regular way, or, in case no such
sale takes place on such date, the average of the closing bid and asked prices,
regular way, for each share of the Common Stock, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if
the Common Stock is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or as reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
or such other system then in use, or if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the securities selected by the
Board of Directors of the Corporation; provided, however, that if on any such
date the Common Stock is not listed or admitted for trading or a national
securities exchange or traded in the over-the-counter market, the closing price
per share of the Common Stock on such date shall mean the fair value per share
of Common Stock on such date as determined in good faith by the Board of
Directors of the Corporation, after consultation with a nationally recognized
investment banking firm with respect to the fair value per share of such
securities, and set forth in a certificate delivered to the Corporation.
As used herein the term "Trading Day," when used with
respect to the Common Stock, shall mean a day on which the principal national
securities exchange on
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<PAGE>
which the Common Stock is listed or admitted to trading is open for the
transaction of business or, if the Common Stock is not listed or admitted to
trading on a national securities exchange, a Business Day (defined to mean any
day other than a Saturday, Sunday or a day on which banking institutions in New
York, New York are generally authorized or obligated by law or executive order
to close).
Section 4. Liquidation Rights.
- ---------- -------------------
Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of Class A Preferred Stock shall be
entitled to receive in cash, before any distribution shall be made to the
holders of shares of Common Stock, a payment (the "Preferential Amount") equal
to One Thousand Dollars ($1,000) per share of Class A Preferred Stock, plus an
amount equal to any dividend accrued or declared but unpaid and shall further
share in the liquidation proceeds with the holders of Common Stock, with the
effect that the amount allocable to one share of Class A Preferred Stock shall
be (i) the same as the amount allocable to one thousand shares of Common Stock,
less (ii) the Preferential Amount, and no more; provided, however, that if the
Corporation shall at any time on or after the Original Issue Date declare or pay
any dividend on Common Stock payable in shares of Common Stock or effect a
subdivision or combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in Common Stock),
into a greater or lesser number of shares of Common Stock, then in each such
case the amount to which holders of Class A Preferred Stock were entitled to
pursuant to clause (i), appearing above in this sentence (before deduction of
the Preferential Amount), shall be adjusted by multiplying such amount by a
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fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 5. Conversion or Exchange.
- ---------- -----------------------
Except as otherwise provided herein, the holders of shares
of Class A Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or classes or
of any other series of any class or classes of capital stock of the Corporation.
In case the Corporation shall enter into any consolidation,
merger, combination, reclassification or other transaction in which the
outstanding shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Class A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to one thousand times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time on or after the
Original Issue Date declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise)
into a greater or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect to the exchange
or change of shares of Class A Preferred Stock shall be adjusted by
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multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 6. Voting.
- ---------- -------
Each share of Class A Preferred Stock shall be entitled to
1,000 votes, voting with the Common Stock as one class on all matters submitted
to a vote of the Common shareholders of the Corporation, provided that, in the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of this Class were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 7. Fractional Shares.
- ---------- ------------------
Class A Preferred Shares may be issued in fractions of a
share, which may be represented by certificates or scrip for fractional shares,
or by depositary receipts, and which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise
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voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Class A Preferred Stock.
THIRD: The classification of authorized but unissued shares
as set forth in these Articles Supplementary has effected no change in the
authorized capital of the Corporation consisting of Two Million (2,000,000)
shares of Preferred Stock, with no par value, and One Hundred Thirty Million
(130,000,000) shares of Common Stock with a par value of Two Dollars ($2.00)
each, amounting in the aggregate to Two Hundred Sixty Million Dollars
($260,000,000).
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IN WITNESS WHEREOF, Mercantile Bankshares Corporation has
caused these presents to be signed in its name and on its behalf by its
President or one of its Vice Presidents and its corporate seal to be hereunto
affixed and attested by its Secretary or an Assistant Secretary this 29th day of
September, 1999, and the undersigned officers acknowledge that these Articles
Supplementary are the act of the Corporation, that to the best of their
knowledge, information and belief all matters and facts set forth herein
relating to the authorization and approval of these Articles are true in all
material respects, and that this statement is made under penalties of perjury.
ATTEST: MERCANTILE BANKSHARES CORPORATION
/s/ Alan D. Yarbro By: /s/ H. Furlong Baldwin
- ------------------ --------------------------
Alan D. Yarbro H. Furlong Baldwin
Secretary Chairman, President and Chief
Executive Officer
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Exhibit 4.2
By-Laws of the Registrant
Exhibit 4.2
BYLAWS
MERCANTILE BANKSHARES CORPORATION
ARTICLE I
SECTION 1. Annual Meeting. The annual meeting of the stockholders of the
Corporation for the election of directors and the transaction of such other
business as may properly come before the meeting shall be held at the time and
on the day in April of each year as shall be fixed from time to time by the
Board of Directors or by the Executive Committee. Notice of the time and place
of such annual meeting shall be given to each stockholder in the manner provided
in Section 1 of Article X of these bylaws not less than ten days nor more than
ninety days before the meeting.
SECTION 2. Special Meetings. Special meetings of the stockholders may be
called at any time by the Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, the President, or as otherwise provided by law.
Notice of the time, place and purpose of each special meeting of stockholders
shall be given to each stockholder in the manner provided in Section 1 of
Article X of these bylaws not less than ten days nor more than ninety days
before the meeting. No business shall be transacted at a special meeting except
that specified in the notice.
SECTION 3. Removal of Directors. At any special meeting of the
stockholders called in the manner provided for by this Article, the
stockholders, by a majority of the votes entitled to be cast by the stockholders
entitled to vote thereon, may remove any director or directors from office and
may elect a successor or successors to fill any resulting vacancies from the
remainder of his or their terms.*
SECTION 4. Voting; Proxies; Record Date. At all meetings of stockholders
any stockholder shall be entitled to vote by proxy. Such proxy shall be in
writing and signed by the stockholder or by his duly authorized attorney in
fact. It shall be dated but need not be sealed, witnessed or
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* See attached Explanatory Note.
<PAGE>
acknowledged. The Board of Directors may fix the record date for the
determination of stockholders entitled to vote in the manner provided in Article
IX, Section 4 of these bylaws.
SECTION 5. Quorum. If at any annual or special meeting of stockholders a
quorum shall fail to attend, those attending in person or by proxy may, by
majority of the votes entitled to be cast, adjourn the meeting from time to
time, not exceeding sixty days in all, and thereupon any business may be
transacted which might have been transacted at the meeting originally called had
the same been held at the time so called.
SECTION 6. Filing Proxies. At all meetings of stockholders, the proxies
shall be filed with and be verified by the Secretary of the Corporation or, if
the meeting shall so decide, by the Secretary of the meeting.
SECTION 7. Place of Meetings. All meetings of stockholders shall be held
at the principal office of the Corporation in the State of Maryland or at such
other place either within or without the State of Maryland as may be designated
in the notice of the meeting.
SECTION 8. Order of Business. At all meetings of stockholders, any
stockholder present and entitled to vote in person or by proxy shall be entitled
to require, by written request to the Chairman of the meeting, that the order of
business shall be as follows:
(1) Organization.
(2) Proof of notice of meeting or of waivers thereof.
(The certificate of the Secretary of the Corporation, or the affidavit of any
other person who mailed or published the notice or caused the same to be mailed
or published, being proof of service of notice.)
(3) Submission by Secretary, or by Inspectors, if any shall have been
elected or appointed, of list of stockholders entitled to vote, present in
person or by proxy.
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(4) If an annual meeting or a special meeting called for that purpose,
reading of unapproved minutes of preceding meetings and action thereon.
(5) Reports.
(6) The election of directors if an annual meeting or a special meeting
called to elect directors, or to remove directors and elect their successors.
(7) Unfinished business.
(8) New Business.
(9) Adjournment.
SECTION 9. Advance Notice of Matters to be Presented at an Annual
Meeting of Stockholders.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting as set forth
below. To be properly brought before an annual meeting, such business must (1)
be specified in the notice of the meeting (or any supplement thereto) given by
the Corporation pursuant to Section 1 of Article X of these bylaws, or (2) be
brought before the meeting by or under the direction of the Board of Directors
(or the Chairman or Vice Chairman of the Board or the President), or (3) be
properly brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary. To be timely, such stockholder's notice must be
delivered to or mailed and received by the Secretary at the principal executive
offices of the Corporation, not less than 60 days nor more than 90 days prior to
the meeting (or, with respect to a proposal required to be included in the
Corporation's proxy statement pursuant to Rule 14a-8 of the Securities Exchange
Act of 1934, or any successor provision to Rule 14a-8, the earlier date such
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proposal was received); provided, however, that if less than 70 days' prior
public disclosure of the date of the meeting is made by the Corporation, any
such notice by a stockholder must be so received not later than the 10th day
following the day on which such prior public disclosure of the date of the
meeting is made by the Corporation. Public disclosure by the Corporation of a
meeting date or other matter contemplated by this Article shall be deemed to
have been made if communicated by notice to stockholders pursuant to Section 1
of Article X of these bylaws, or by any filing with the Securities and Exchange
Commission, or by any general mailing to stockholders of record, or by public
announcement or by other means reasonably calculated to constitute public
disclosure. With respect to action proposed by any stockholder which is
permitted by Article XII of these bylaws, to change or rescind action taken by
the Board of Directors pursuant to said Article XII, notice of such proposed
action by the stockholder shall be deemed timely if given no earlier than the
time prescribed above for stockholder notices and no later than the later of the
10th day following public disclosure by the Company of such Board action or the
60th day prior to the meeting. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (iv) any material interest of the
stockholder in such business.
Notwithstanding anything in these bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 9; provided, however, that nothing in this
Section 9 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with such
procedures.
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The presiding officer at the meeting shall have the authority, if the
facts warrant, to determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 9, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
SECTION 10. Advance Notice of Nominees for Directors. Only persons who
are nominated in accordance with the following procedures shall be eligible for
election as directors at any meeting of stockholders. Nominations of persons for
election to the Board of Directors of the Corporation may be made at an annual
meeting of stockholders or at a special meeting of stockholders as to which the
notice of meeting provides for election of directors, by or under the direction
of the Board of Directors, or by any nominating committee or person appointed by
the Board of Directors, or by any stockholder of the Corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Section 10. Such nominations, other than those made
by or under the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary. To be timely, such stockholder's
notice shall be delivered to or mailed and received by the Secretary at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the meeting; provided, however, that if less than 70 days'
prior public disclosure of the date of the meeting is made by the Corporation,
any such notice by a stockholder must be so received not later than the 10th day
following the day on which such prior public disclosure of the date of the
meeting is made by the Corporation.
Such stockholder's notice shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or re-election as a director,
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii)
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the class and number of shares of stock of the Corporation which are
beneficially owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to the proxy rules under the Securities Exchange
Act of 1934 or any successor rule thereto; and (b) as to the stockholder giving
the notice, (i) the name and record address of the stockholder and (ii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder. The Corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth herein.
The presiding officer at the meeting shall have the authority, if the
facts warrant, to determine that a nomination was not made in accordance with
the foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
ARTICLE II
DIRECTORS.
SECTION 1. Powers. The Board of Directors shall have the control and
management of the affairs, business and properties of the Corporation. They
shall have and exercise in the name of the Corporation and on behalf of the
Corporation all the rights and privileges legally exercisable by the
Corporation, except as otherwise provided by law, by the Charter or by these
bylaws. A director need not be a stockholder.
SECTION 2. Number. There shall be fifteen directors. The number of
directors may be
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decreased to not less than seven or increased to not more than thirty from time
to time by amendment of this bylaw by the stockholders or by the Board of
Directors. Each director, unless sooner removed by the stockholders, shall serve
until the next annual meeting of stockholders or until his successor shall be
elected and shall have qualified.*
No person shall be eligible for election as a director, either by the
stockholders or by the Board of Directors, who at the time of such proposed
election has passed his 70th birthday.
SECTION 3. Vacancies. If the office of a director becomes vacant, or if
the number of directors is increased, such vacancy may be filled by the Board by
a vote of a majority of directors then in office although such majority is less
than a quorum. The stockholders may, however, at any time during the term of
such director, elect some other person to fill said vacancy and thereupon the
election by the Board shall be superseded and such election by the stockholders
shall be deemed a filling of the vacancy and not a removal and may be made at
any meeting called for that purpose.*
If the entire Board of Directors shall become vacant, any stockholder
may call a special meeting in the same manner that the President may call such
meeting, and directors for the unexpired term may be elected at the said special
meeting, in the manner provided for their election at annual meetings.
SECTION 4. Meetings. Four or more regular meetings of the Board of
Directors shall be held at an office of the Corporation each year. One of such
meetings shall be held on the same day as and immediately following the annual
meeting of stockholders and the remaining meetings shall be held on such days
and at such times as shall be fixed by the chief executive officer but there
shall be at least one regular meeting in each calendar quarter. Notice of the
date and time of every regular meeting shall be mailed or telegraphed or given
personally to each director not less than five
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* See attached Explanatory Note.
7
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days before the meeting.
SECTION 5. Special Meetings. Special meetings of the Board of Directors
may be called by the Board of Directors, the Executive Committee, the Chairman
of the Board, the Vice-Chairman of the Board or the President and shall be
called at the request of two or more directors. Notice of the time and place of
any special meeting shall be given to each director in the manner provided in
Section 2 of Article X of these bylaws not less than twenty-four hours before
the meeting.
SECTION 6. Quorum. One-third of the total number of directors, but not
less than four, shall constitute a quorum for the transaction of business. If
less than a quorum be present at any meeting duly called, a majority of those
present may adjourn the meeting from time to time with notice to absent
directors.
SECTION 7. Place of Meetings. Regular or special meetings of the Board
may be held within or without the State of Maryland as the Board may from time
to time determine. The time and place of a meeting may be fixed by the party
making the call.
SECTION 8. Rules and Regulations. The Board of Directors may adopt such
rules and regulations for the conduct of their meetings and the management of
the affairs of the Corporation as they may deem proper and not inconsistent with
the laws of the State of Maryland or these bylaws or the Charter.
SECTION 9. Compensation. The directors may receive a stated salary for
their services or a fixed sum and expenses of attendance may be allowed for
attendance at each regular or special meeting of the Board of Directors. Such
stated salary or attendance fee shall be determined by resolution of the Board
unless the stockholders have adopted a resolution relating thereto. Nothing
herein contained shall be construed to preclude a director from serving in any
other capacity and receiving compensation therefor.
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ARTICLE III
COMMITTEES.
SECTION 1. Executive Committee. There shall be an Executive Committee of
such number not more than fourteen nor less than seven as the Board of Directors
may determine. The Chairman of the Board, the Vice-Chairman of the Board, the
President and the chief executive officer if an officer other than the officers
stated above, shall be members ex officio. The remaining members shall be
elected annually by the Board of Directors from among its members, preferably at
the first meeting after the annual meeting of stockholders, and shall serve
during the pleasure of the Board. The chief executive officer or such other
person as shall be designated by the Board shall act as chairman of the
committee. Additional or substitute members may be elected by the Board at any
time. In addition, the chief executive officer shall have power to make
temporary appointments to the committee of members of the Board of Directors to
serve as additional members or to act in the place and stead of members of the
committee who temporarily cannot attend its meetings. The Executive Committee
shall have and may exercise, so far as may be permitted by law, all of the
powers of the Board of Directors during intervals between meetings thereof.
SECTION 2. Other Committees. The Board of Directors may also appoint
from their number other committees and, to the extent permitted by law, may
delegate to any such committee the exercise of powers of the Board of Directors
during intervals between meetings thereof. The Chairman of the Board, the
Vice-Chairman of the Board, the President and the chief executive officer if an
officer other than the officers stated above, shall be members ex officio of all
such committees, but no officer shall be a member of any committee designated by
the Board of Directors as an Audit Committee or Compensation Committee.
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SECTION 3. Committee Meetings. All actions of any committee shall be
recorded in minutes of its meetings and all such actions shall be reported to
the next succeeding meeting of the Board of Directors. Meetings of any committee
may be held at any time and place upon the call of the Chairman of the Board,
the Vice-Chairman of the Board, the President, the chief executive officer if an
officer other than the officers stated above, or any other member of the
committee called to meet. Notice of the time and place of any special meeting of
any committee shall be given in the manner provided in Section 2 of Article X of
these bylaws not less than twelve hours before the meeting. Six members of the
Executive Committee and four members of any other committee shall constitute a
quorum unless otherwise provided by the Board of Directors for any particular
committee.
ARTICLE IV
OFFICERS.
SECTION 1. Officers and their Duties. The officers of the Corporation
shall consist of the Chairman of the Board, the Vice-Chairman of the Board, the
President, the Secretary, the Treasurer and whenever deemed advisable by the
Board one or more executive vice presidents, one or more vice presidents,
assistant secretaries, assistant treasurers or other officers. All of said
officers shall be chosen by the Board of Directors and shall hold office only
during the pleasure of the Board or until their successors are chosen and
qualify. The Chairman of the Board, the Vice-Chairman of the Board and the
President shall be chosen from among the directors. Any two offices except those
of Chairman of the Board and Vice-Chairman of the Board, and President and Vice
President may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity, when such
instrument is required to be executed, acknowledged, or verified by any two or
more officers. The Board of Directors may from time to
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time appoint such other agents and employees, with such powers and duties as
they may deem proper.
The Board of Directors shall, from time to time, designate from among
the officers, a chief executive officer who shall direct the management of the
Corporation under the supervision of the Board of Directors or the appropriate
committees thereof and, subject to the same supervision, may also assign to the
other officers of the Corporation duties in addition to those prescribed by
these bylaws or assigned to them by the Board of Directors. The Board of
Directors may, from time to time, designate from among the officers, the officer
or officers who shall act as chief executive officer in case of the absence or
inability to act of the then designated chief executive officer.
SECTION 2. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of stockholders and of the Board of Directors and shall
perform such other duties as may be assigned to him by the Board of Directors.
SECTION 3. Vice-Chairman of the Board. In the absence of the Chairman of
the Board, the Vice-Chairman of the Board shall act in the place of the Chairman
of the Board and assume his duties and be vested with all his powers and
authorities. He shall perform such other duties as may be assigned to him by the
Board of Directors.
SECTION 4. President. In the absence of the Chairman of the Board and
the Vice-Chairman of the Board, the President shall act in the place of the
Chairman of the Board and assume his duties and be vested with all his powers
and authorities. He shall perform such other duties as may be assigned to him by
the Board of Directors.
SECTION 5. Vice-Presidents. The executive vice-presidents and
vice-presidents shall perform such duties as the Board of Directors may direct.
SECTION 6. Treasurer. The Treasurer shall perform such duties as may be
assigned to him
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by the Board of Directors.
SECTION 7. Secretary. The Secretary shall keep the minutes of the
meetings of the stockholders and of the Board of Directors, and shall attend to
the giving and serving of all notices of the Corporation required by law or
these bylaws. He shall maintain at all times in the principal office of the
Corporation at least one copy of the bylaws with all amendments to date and
shall make the same, together with the minutes of the meetings of the
stockholders, the annual statement of the affairs of the Corporation and any
voting trust agreement on file at the office of the Corporation, available for
inspection by any officer, director or stockholder during reasonable business
hours. He shall perform such other duties as may be assigned to him by the Board
of Directors.
SECTION 8. Assistant Treasurer and Assistant Secretary. The assistant
treasurers and assistant secretaries shall perform such duties as may from time
to time be assigned to them by the Board of Directors.
SECTION 9. Substitutes. The Board of Directors may from time to time in
the absence of any one of said officers or at any other time designate any other
person or persons, on behalf of the Corporation, to sign any contracts, deeds,
notes, or other instruments in the place or stead of any of said officers, and
may designate any person to fill any one of said offices, temporarily or for any
particular purpose; and any instruments so signed in accordance with a
resolution of the Board shall be the valid act of this Corporation as fully as
if executed by any regular officer.
ARTICLE V
RESIGNATION OF DIRECTOR OR OFFICER.
Any director or officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect from the time of its
receipt by the Corporation unless some other time
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be fixed in the resignation, and then from that time. The acceptance of a
resignation shall not be required to make it effective unless the resignation so
provides.
ARTICLE VI
COMMERCIAL PAPER, ETC.
All bills, notes, checks, drafts and commercial paper of all kinds to be
executed by the Corporation as maker, acceptor, endorser, or otherwise, and all
assignments and transfers of stock, contracts or written obligations of the
Corporation, and all negotiable instruments shall be made in the name of the
Corporation and shall be signed by the President, the Treasurer or such other
person or persons as the Board of Directors may from time to time designate.
ARTICLE VII
FISCAL YEAR.
The fiscal year of the Corporation shall cover such period of twelve
months as the Board of Directors may determine. In the absence of any such
determination the accounts of the Corporation shall be kept on a calendar year
basis.
ARTICLE VIII
SEAL.
The seal of the Corporation shall be a circle inscribed with the name of
the Corporation and the year and State in which it is incorporated.
ARTICLE IX
MISCELLANEOUS PROVISIONS - STOCK.
SECTION 1. Issue. All certificates of stock shall be signed by the
Chairman of the Board, the Vice-Chairman of the Board, the President, or any
Vice-President and countersigned by the Treasurer or Assistant Treasurer or
Secretary or Assistant Secretary, any of which may be facsimile
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signatures if the certificate is countersigned by the Transfer Agent, and sealed
with the seal of the Corporation.
SECTION 2. Transfers. No transfers of stock shall be recognized or
binding upon the Corporation until recorded on the books of the Corporation upon
surrender and cancellation of certificates for a like number of shares.
SECTION 3. Form of Certificates; Procedure. The Board of Directors shall
have power and authority to determine the form of stock certificates (except in
so far as prescribed by law), and to make all such rules and regulations, as
they may deem expedient concerning the issue, transfer and registration of said
certificates, and to appoint one or more transfer agents or registrars to
countersign and register the same.
SECTION 4. Record Dates for Dividends and Stockholders' Meetings. The
Board of Directors may fix the time, not exceeding twenty days preceding the
date of any meeting of stockholders, any dividend payment date or any date for
the allotment of rights, during which the books of the Corporation shall be
closed against transfers of stock, or the Board of Directors may fix a date not
exceeding ninety days preceding the date of any meeting of stockholders, any
dividend payment date or any date for the allotment of rights, as a record date
for the determination of the stockholders entitled to notice of and to vote at
such meeting, or entitled to receive such dividends or rights, as the case may
be, and only stockholders of record on such date shall be entitled to notice of
and to vote at such meeting or to receive such dividends or rights, as the case
may be. In the case of a meeting of stockholders the record date shall be fixed
not less than ten days prior to the date of the meeting.
SECTION 5. Lost and Destroyed Certificates. The holder of any shares of
this Corporation shall immediately notify it of any loss or destruction of the
stock certificate representing such
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shares. A new certificate may be issued upon satisfactory proof of the loss, or
destruction, and delivery to this Corporation of a bond which shall be in such
form, contain such terms and provisions, and have such surety or sureties as the
officers of this Corporation may direct.
ARTICLE X
NOTICE.
SECTION 1. Notice to Stockholders. Whenever by law or these bylaws
notice is required to be given to any stockholder, such notice may be given to
each stockholder by leaving the same with him or at his residence or usual place
of business, or by mailing it, postage prepaid, and addressed to him at his
address as it appears on the books of the Corporation. Such leaving or mailing
of notice shall be deemed the time of giving such notice.
SECTION 2. Notice to Directors and Officers. Whenever by law or these
bylaws notice is required to be given to any director or officer, such notice
may be given in any one of the following ways: by personal notice to such
director or officer, by telephone communication with such director or officer
personally, by wire addressed to such director or officer at his then address or
at his address as it appears on the books of the Corporation, or by depositing
the same in writing in the post office or in a letter box in a post-paid, sealed
wrapper addressed to such director or officer at his then address or at his
address as it appears on the books of the Corporation; and the time when such
notice shall be mailed or consigned to a telegraph company for delivery shall be
deemed to be the time of the giving of such notice.
SECTION 3. Waiver of Notice. Notice to any stockholder or director of
the time, place and purpose of any meeting of stockholders or directors required
by these bylaws may be dispensed with if such stockholder shall either attend in
person or by proxy, or if such director shall attend in person, or if such
absent stockholder or director shall, in writing filed with the records of the
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meeting either before or after the holding thereof, waive such notice.
ARTICLE XI
VOTING OF STOCK IN OTHER CORPORATIONS.
Any stock in other corporations, which may from time to time be held by
the Corporation may be represented and voted at any meeting of stockholders of
such other corporations by the Chairman of the Board, Vice-Chairman of the
Board, President, or a Vice President or by proxy or proxies appointed by any
one of said officers or otherwise pursuant to authorization thereunto given by a
resolution of the Board of Directors adopted by a vote of the majority of the
Directors.
ARTICLE XII
AMENDMENTS.
These bylaws may be added to, altered, amended, repealed or suspended by
a majority vote of the entire Board of Directors at any regular meeting of the
Board or at any special meeting called for that purpose. Any action of the Board
of Directors in adding to, altering, amending, repealing or suspending these
bylaws shall be reported to the stockholders at the next annual meeting and may
be changed or rescinded by majority vote of all of the stock then outstanding
and entitled to vote. In no event shall the Board of Directors have any power to
amend this Article.
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EXPLANATORY NOTE
----------------
As reported on Form 8-K, filed with the Securities and Exchange Commission
on June 11, 1999, the Corporation has become subject to the provisions of
Subtitle 8 of Title 3 of the Maryland General Corporation Law ("MGCL"), Chapter
300, 1999 Laws of Maryland. These provisions prevail over inconsistent
provisions of the Corporation's Bylaws.
The affected Bylaw provisions are Section 3 of Article I and Sections 2 and
3 of Article II, which deal with the number of directors, removal of directors,
and the filling of vacancies. These matters are now governed by MGCL Section
3-804 which requires, for removal of a director, a vote of at least two-thirds
of all the votes entitled to be cast by the stockholders, and only for cause in
accordance with MGCL Section 2-406(b)(3), and which provides that the number of
directors shall be fixed only by vote of the Board of Directors and that
vacancies on the Board of Directors shall be filled only by the vote of a
majority of the directors remaining in office.
In addition, pursuant to MGCL Section 3-803, the Board of Directors has
been divided into three classes, each having a three-year term.
Exhibit 4.4
MERCANTILE BANKSHARES CORPORATION
1999 OMNIBUS STOCK PLAN
ARTICLE 1
1999 OMNIBUS STOCK PLAN
For the purposes of this Plan, the definitions set forth in Sections 1.1
through 1.21 shall be applicable.
SECTION 1.1 AFFILIATE. "Affiliate" shall mean: (i) any corporation in
which MBC owns, directly or indirectly, within the meaning of Section 424(f) of
the Code, 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 Section 424(e) of the Code.
SECTION 1.2 BOARD. "Board" shall mean the Board of Directors of MBC.
SECTION 1.3 CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any regulations issued thereunder.
SECTION 1.4 COMMITTEE. "Committee" shall mean the Committee appointed,
pursuant to Section 3.3 of the Plan, to administer the Plan.
SECTION 1.5 EXERCISE DATE. "Exercise Date" shall mean the date on which an
Option, SAR, or PSU is exercised, determined in accordance with the provisions
of an Option Agreement, Restricted Stock Agreement, agreement granting a SAR or
PSU, or such rules and regulations as the Committee may adopt.
SECTION 1.6 FAIR MARKET VALUE. "Fair Market Value" of a share of Stock on
a date shares of Stock are to be valued ("valuation date") in accordance with
the provisions of an Option Agreement, Restricted Stock Agreement or other
grant agreement made pursuant to this Plan shall mean:
(i) the last reported sale price per share of Stock, regular way, on the
valuation date, or in case no such sale takes place, the average of the
closing bid and asked prices, regular way, on such date, in either case as
reported in the principal consolidated transaction reporting system for
securities listed or admitted to trading on a national securities exchange
or included for quotation on the Nasdaq National Market ("NNM"); or
(ii) if the Stock is not so listed or admitted to trading or included for
quotation on the valuation date, the last quoted price, or if the Stock is
not quoted the average of the high bid and low asked prices, regular way,
on such date, in the over-the-counter market, as reported by the NASD
Automated Quotations System, or if such system is no longer in use, the
principal other automated quotation system then in use; or
(iii) if the Stock is not quoted by any such organization, the average of
the closing bid and asked prices, regular way, on the valuation date, as
furnished by a professional market maker making a market in the Stock as
selected in good faith by the Committee; provided, however, that the
determination of fair market value shall be made in good faith in
accordance with the Code. If a valuation date is not a trading day, the
determination shall be made as of the next preceding trading day. "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 NNM, any day other
than a Saturday, a Sunday or a day on which banking institutions in the
State of New York are closed.
SECTION 1.7 GRANTEE. "Grantee" shall mean a Key Employee who has been
granted an Option, SAR, PSU, or Restricted Stock pursuant to the provisions of
the Plan.
SECTION 1.8 GRANT DATE. "Grant Date" means the date on which the Committee
formally acts to grant an Option, SAR, PSU, or Restricted Stock to a Grantee.
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SECTION 1.9 ISO. "ISO" shall mean an option to acquire Stock that is an
incentive stock option as defined in Section 422(b) of the Code.
SECTION 1.10 KEY EMPLOYEE. "Key Employee" shall mean any employee of MBC
or an Affiliate whom the Committee determines to be a Key Employee, taking into
account the nature of the services rendered or to be rendered by the particular
employee, the employee's potential contribution to the long-term success of MBC
or an Affiliate, and such other factors as the Committee shall deem relevant.
SECTION 1.11 MBC. "MBC" shall mean Mercantile Bankshares Corporation.
SECTION 1.12 NON-ISO. "Non-ISO" shall mean an option to acquire Stock that
is not an ISO.
SECTION 1.13 OPTION. "Option" shall mean an ISO and/or a Non-ISO.
SECTION 1.14 OPTION AGREEMENT. "Option Agreement" shall mean an agreement
between MBC (or an Affiliate) and a Grantee memorializing the terms and
conditions of an Option granted under Section 4.1 of the Plan, and any SAR
granted in tandem therewith.
SECTION 1.15 OPTION PRICE. "Option Price" shall mean the price per share
of Stock at which an option may be exercised.
SECTION 1.16 PLAN. "Plan" shall mean this Mercantile Bankshares
Corporation 1999 Omnibus Stock Plan.
SECTION 1.17 PSU. "PSU" shall mean a phantom stock unit, which, upon
exercise thereof, shall entitle Grantee to the Fair Market Value of a share of
Stock determined as of such date as the Committee shall specify.
SECTION 1.18 RESTRICTED STOCK. "Restricted Stock" shall mean Stock granted
to and registered in the name of a Grantee pursuant to Section 5.1 of the Plan,
but that is non-transferable and subject to forfeiture in accordance with the
provisions of Article 5 of the Plan.
SECTION 1.19 RESTRICTED STOCK AGREEMENT. "Restricted Stock Agreement"
shall mean an agreement between MBC (or an Affiliate) and a Grantee
memorializing the terms and conditions imposed on Restricted Stock issued
pursuant to the provisions of Section 5.1 of the Plan, and any PSUs granted in
tandem therewith.
SECTION 1.20 SAR. "SAR" shall mean a stock appreciation right, which, upon
exercise thereof, shall entitle Grantee to the amount by which the Fair Market
Value of a share of Stock on the Exercise Date exceeds the Fair Market Value of
a share of Stock on the Grant Date.
SECTION 1.21 STOCK. "Stock" shall mean shares of MBC's authorized but
unissued common stock.
ARTICLE 2
PURPOSE AND SCOPE
SECTION 2.1 PURPOSE. The purpose of the Plan is to further the long-term
success of MBC and its Affiliates by attracting and retaining Key Employees of
MBC and its Affiliates through the use of stock-based incentives. It is
believed that the awards granted to eligible persons under this Plan will
motivate those persons to further the profitable growth of MBC and will help
strengthen their desire to remain with MBC and its Affiliates and will further
the identification of those persons' interests with those of MBC' stockholders.
The Plan applies only to Options, SARs, Restricted Stock, and PSUs granted
under the Plan and shall not apply to any Option, SAR, Restricted Stock, or PSU
granted under any other plan of MBC or its Affiliates.
SECTION 2.2 SCOPE. The aggregate number of shares of Stock that may be
issued under the Plan shall not exceed 3,000,000 shares, unless such number of
shares is adjusted as provided in Section 7.1 hereof. If an Option expires, is
cancelled, or terminates for any reason without having been exercised in full,
or if the number of shares of Stock subject to the Option is reduced by reason
of the exercise of a SAR granted in tandem therewith, or Restricted Stock is
forfeited, the shares of Stock as to which the Option was not exercised and the
Restricted Stock forfeited shall become available for issuance under the Plan.
No employee may, in any fiscal year, be awarded grants covering more than an
aggregate of 450,000 shares of
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Stock (the "Limit"), provided, however, that (i) Stock underlying a tandem
grant of Options and SARs, or (ii) Restricted Stock and tandem PSUs shall, in
either case, be counted only once in calculating the Limit. The Limit shall be
adjusted to reflect any adjustment of shares of Stock under Section 7.1.
SECTION 2.3 ELIGIBILITY AS GRANTEE; NO GUARANTEE OF EMPLOYMENT. Only a Key
Employee may be a Grantee, provided that no member of the Committee may be a
Grantee. The grant of an award under this Plan shall not be construed as a
guarantee of continued employment by the recipient.
SECTION 2.4 EFFECTIVE DATE AND DURATION OF PLAN. The Plan shall become
effective upon its approval by the stockholders of MBC. Unless previously
terminated by the Board, the Plan shall terminate on the tenth anniversary of
its adoption by the Board. Awards may be granted only during the term of the
Plan, but each award granted during the term of the Plan will remain in effect
after the termination of the Plan until such award has been exercised,
terminated or expired in accordance with its terms and the terms of the Plan.
ARTICLE 3
ADMINISTRATION OF PLAN
SECTION 3.1 ADMINISTRATION BY COMMITTEE. The Plan shall be administered by
a committee of the Board appointed pursuant to the provisions of Section 3.3 of
the Plan.
SECTION 3.2 POWERS OF COMMITTEE. The Committee shall have full and final
authority, consistent with the exercise of the maximum discretion permitted by
law:
(i) to identify, from time to time, Key Employees;
(ii) to grant Options, SARs, PSUs, and Restricted Stock, from time to
time, to Key Employees;
(iii) to determine the time or times at which Options, SARs, PSUs, and
Restricted Stock shall be granted;
(iv) to determine the duration, terms and provisions of Options, Option
Agreements, SARs, Restricted Stock Agreements, and PSUs, including but not
limited to, any vesting or other restrictions;
(v) to condition the exercise of any Option, SAR, PSU, or the issuance of
any shares of Restricted Stock, on the attainment of specified performance
goals by the Key Employee or by MBC or an Affiliate;
(vi) to restrict the sale or otherwise provide for the repurchase of
Stock acquired pursuant to the exercise of an Option or SAR or in
accordance with the provisions of a Restricted Stock Agreement;
(vii) to determine the Fair Market Value of Stock;
(viii) subject to the provisions of Section 4.2, to determine the Option
Price;
(ix) to interpret the Plan, Options, Option Agreements, SARs, PSUs and
Restricted Stock Agreements;
(x) to prescribe, amend and rescind rules and regulations relating to the
Plan; and
(xi) to make all other determinations, orders and decisions which the
Committee deems necessary or advisable for the administration of the Plan.
With respect to any grant or award under the Plan, the Committee may
condition the grant, award, or the vesting or exercisability of the grant or
award, on one or more pre-established, objective performance goals. Such goals
may include (without limitation) performance criteria such as earnings per
share, return on equity, return on assets, income or net income, operating
income or net operating income, sub-categories or combinations of the
foregoing, and any other performance criteria contemplated by Section 162(m) of
the Code and regulations thereunder.
All determinations made, interpretations rendered, rules and regulations
adopted, and other actions taken by the Committee, pursuant to this Section
3.2, shall be conclusively binding upon MBC, an Affiliate, a Grantee, and upon
all other persons for all purposes.
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SECTION 3.3 COMMITTEE.
(a) APPOINTMENT OF COMMITTEE. The Board shall appoint a committee
consisting of at least three members of the Board to administer the Plan. The
Committee may be the Compensation Committee of the Board, or a subcommittee of
the Compensation Committee, or such other committee as the Board may designate.
The Board shall designate one member of the Committee to serve as Chairman of
the Committee, and may, from time to time, in its sole and exclusive
discretion, rescind its prior designation of Chairman and designate a different
member of the Committee as Chairman. The Board may require that members of the
Committee be "outside directors" within the meaning of Section 162(m) of the
Code and "non-employee directors" as defined in Rule 16b-3 of the Securities
and Exchange Commission, as amended from time to time. The Board may from time
to time remove members from, or add members to, the Committee. Vacancies on the
Committee, however caused, may be filled by the Board.
(b) REPORTS OF COMMITTEE. The Committee shall file with the Board, at
least annually, a report that shall state the total number of shares of Stock
subject to Options; the total number of SARs and PSUs granted; the total number
of shares of Restricted Stock granted under the Plan; the total number of
shares of Stock issued pursuant to the exercise of any Option or SAR; the total
number of shares of Stock as to which there has been delivery of share
certificates under the Plan; and the amount of cash paid, if any, upon the
exercise of a PSU or SAR; all from the inception of the Plan and from the date
of the last report of the Committee.
SECTION 3.4 LIABILITY LIMITED. To the maximum extent permitted by law, no
member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan and/or any Option,
SAR, or PSU granted, Stock or Restricted Stock issued under the Plan.
SECTION 3.5 INDEMNIFICATION. To the maximum extent permitted by law, the
members of the Board and Committee shall be indemnified by MBC in respect of
all their activities under the Plan.
ARTICLE 4
OPTIONS
SECTION 4.1 GRANT OF OPTIONS TO KEY EMPLOYEES. The Committee may grant
Options to Key Employees for such number of shares of Stock as the Committee
may determine.
SECTION 4.2 OPTION PRICE. The Option Price of Stock shall be determined by
the Committee and shall not be less than the Fair Market Value of the Stock on
the Grant Date. If, immediately before an ISO is granted, a Key Employee owns
(within the meaning of Section 422(b)(6) of the Code, after the application of
the attribution rules contained in Section 424(d) of the Code) more than 10% of
the total combined voting power of all classes of stock of either MBC or an
Affiliate, the Option Price of Stock subject to an ISO shall not be less than
110% of the Fair Market Value of the Stock on the Grant date.
SECTION 4.3 EXERCISE OF OPTIONS. Except as provided herein, each Option
shall be exercisable in accordance with the provisions of the Option Agreement,
and/or such rules and regulations as the Committee may have prescribed, and /or
such determinations, orders, or decisions as the Committee may have made. If an
Option is not immediately exercisable in full, the Committee may, in its
discretion, accelerate the time when such Option may be exercised. MBC or an
Affiliate may make or guarantee a loan to the Grantee to assist in the payment
of the Option Price. The term of any Option shall not exceed ten years from the
Grant Date.
SECTION 4.4 OPTION AGREEMENT. As a condition of the grant of an Option,
MBC and the Key Employee shall execute an Option Agreement that shall
incorporate the terms of the Plan, specify the Option Price, the number of
shares of Stock subject to the Option, and contain such other terms and
conditions as the Committee may determine. If the Option granted is an ISO, the
Option Agreement shall also contain such provisions as are required by the
Code.
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ARTICLE 5
RESTRICTED STOCK
SECTION 5.1 ISSUANCE OF RESTRICTED STOCK. The Committee may grant such
number of shares of Restricted Stock to a Key Employee as the Committee may
determine. The grant of Restricted Stock shall be subject to the provisions of
the Plan and such other terms and conditions as the Committee may prescribe.
Each certificate for Restricted Stock shall be registered in the name of the
Grantee and deposited by him, together with a stock power endorsed in blank,
with MBC.
SECTION 5.2 RESTRICTED STOCK AGREEMENT. As a condition of the grant of
Restricted Stock, the Key Employee and MBC shall execute a Restricted Stock
Agreement that shall incorporate the provisions of the Plan, specify the number
of shares of Restricted Stock granted, and contain such other terms and
conditions as the Committee may determine. Except for such restrictions as are
imposed by the Restricted Stock Agreement, the Grantee shall have all the
rights of a shareholder of Stock. At such time as shares of Restricted Stock
are no longer subject to forfeiture in accordance with the provisions of a
Restricted Stock Agreement, Grantee may require delivery by MBC of share
certificates representing the number of shares of Stock that are not subject to
forfeiture.
ARTICLE 6
SARs and PSUs
SECTION 6.1 GRANT OF SARS and PSUS. The Committee may grant SARs and PSUs.
SARs may be granted in tandem (or not) with either ISOs or Non-ISOs and, if
granted in tandem with an ISO, shall conform to the requirements of Section 422
of the Code with respect to the grant and exercise of alternative rights issued
in connection with ISOs.
SECTION 6.2 EXERCISE OF SARS and PSUS. SARs and PSUs shall be exercisable
as provided in the Agreement to which they are subject, and such other rules
and regulations as the Committee may have adopted. A SAR may not be exercised
or be deemed to have been exercised when the Fair Market Value of a share of
Stock on the Grant Date exceeds the current Fair Market Value of the Stock.
ARTICLE 7
STOCK ADJUSTMENTS
SECTION 7.1 CHANGES IN CAPITAL STRUCTURE. In the event of a
reclassification, recapitalization, combination, or exchange of stock, stock
split, reverse stock split, stock dividend, or other similar event affecting
Stock, the number and class of shares of Stock issued, the number of SARs or
PSUs, the number and class of shares of stock which may be issued upon exercise
of Options or SARs previously granted, and the price per share payable upon
exercise of Options, SARs, or PSUs, or the delivery of Restricted Stock shall
be equitably adjusted by the Committee to reflect the change. No fractional
shares of stock shall be issued under the Plan on account of such adjustments.
SECTION 7.2 SALE, MERGER OR TENDER OFFER. In the event of any proposed
merger, consolidation, share exchange, or similar transaction to which MBC
would be a party, or in the case of a tender or exchange offer for stock of
MBC, the Committee or the Board may take such action as is deemed appropriate
to effectuate the purposes of this Plan and to protect the Grantees of Options,
SARs, PSUs, and Restricted Stock, which action may include, but without
limitation, any one or more of the following: acceleration or change of the
Exercise Dates of any Option, SAR or PSU, or the date of delivery of Restricted
Stock; arrangements with Grantees for the payment of appropriate consideration
to them for the cancellation and surrender of any Option, SAR, PSU, or
Restricted Stock; and in any case where equity securities other than Stock of
MBC are proposed to be delivered in exchange for or with respect to Stock of
MBC, arrangements providing that any Option, SAR or PSU shall become one or
more Options, SARs, or PSUs with respect to such other equity securities.
SECTION 7.3 LIQUIDATION OR DISSOLUTION. If MBC dissolves and liquidates
(other than pursuant to a plan of merger or reorganization), then
notwithstanding any restrictions on exercise set forth in this Plan
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or any Option Agreement or Restricted Stock Agreement; (i) each Grantee of an
Option, SAR or PSU shall have the right to exercise his Option, SAR, or PSU,
and each Grantee of Restricted Stock shall have the right to require delivery
of share certificates representing such Stock, at any time up to ten days prior
to the effective date of such liquidation and dissolution; and (ii) the
Committee or the Board may make arrangements with Grantees for the payment of
appropriate consideration to them for the cancellation and surrender of any
Option, SAR, PSU, or Restricted Stock that is so cancelled or surrendered at
any time up to ten days prior to the effective date of such liquidation and
dissolution. The Committee or the Board may establish a different period for
such exercise, delivery, cancellation, or surrender by notice to the Grantee,
and it may establish limitations on exercise, delivery, cancellation, or
surrender to avoid subjecting the Grantee to liability under Section 16(b) of
the Securities Exchange Act of 1934. Any Option, SAR, or PSU not so exercised,
cancelled, or surrendered shall terminate on the last day for exercise prior to
such effective date; and any Restricted Stock as to which there has not been
such delivery of share certificates or that has not been so cancelled or
surrendered, shall be forfeited on the last day prior to such effective date.
SECTION 7.4 LIMITATION ON RIGHTS OF GRANTEE. Except as expressly provided
in this Plan or in an agreement granting the Option, Restricted Stock, SAR or
PSU pursuant to this Plan, the Grantee of an Option, Restricted Stock, SAR or
PSU shall have no rights by reason of the issuance or grant of (i) shares of
Stock or Restricted Stock of MBC pursuant to the Plan, (ii) additional shares
of stock of MBC (regardless of class or whether issued pursuant to the Plan),
(iii) any other security or debenture convertible into stock of MBC, or (iv)
any other equity security, including issuance pursuant to a plan of merger,
consolidation, or statutory share exchange, and no adjustment by reason thereof
shall be made with respect to the number of shares of Stock subject to an
Option or SAR, or with respect to the number of shares of Restricted Stock or
PSUs granted, or an Option Price or the consideration to be received upon the
exercise of a SAR or PSU.
SECTION 7.5 RIGHTS OF MBC. Neither the grant of an Option, SAR, PSU, or
Restricted Stock, nor the issuance of Stock pursuant to the exercise of an
Option or SAR, nor the delivery of share certificates pursuant to the Plan
shall affect in any way the right or power of MBC to issue additional shares of
Stock; to make adjustments, reclassifications, reorganizations or changes in
its capital or business structure; to participate in a merger, consolidation,
or share exchange with another corporation; or to dissolve, liquidate, or sell
or transfer all or any part of its business or assets. In making any adjustment
or taking any action under this Article 7, or in determining that no such
adjustment or action is appropriate, the Committee and the Board may rely upon
the advice of counsel and accountants of MBC and the determination shall be
conclusive.
ARTICLE 8
AMENDMENT OF THE PLAN
The Board may at any time terminate, suspend, or amend the Plan. The Board
may require any Plan amendments to be submitted for approval by the
stockholders of MBC in its discretion, including but not limited to cases in
which such approval is deemed appropriate for compliance with Section 162(m) or
other provisions of the Code, or to secure exemption from Section 16(b) of the
Securities Exchange Act of 1934.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 NON-TRANSFERABILITY OF OPTIONS, SARS AND PSUS. Except as
otherwise determined by the Committee, no Option, SAR, or PSU granted hereunder
shall be transferable otherwise than by will or the laws of descent and
distribution. During the lifetime of the Grantee, an Option, SAR, or PSU may be
exercised only by him or, during the period he is under a legal disability, by
his guardian or legal representative.
SECTION 9.2 LEGAL RESTRICTIONS. MBC will not be obligated to issue shares
of Stock or to undertake delivery of share certificates if counsel to MBC
determines that such issuance or delivery would violate any law or regulation
of any governmental authority or any agreement between MBC and any securities
association or exchange upon which the Stock is traded. In connection with any
Stock issuance or delivery
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of share certificates, the person acquiring the shares shall, if requested by
MBC, give assurances satisfactory to counsel to MBC regarding such matters as
MBC may deem desirable to assure compliance with all legal requirements. MBC
shall in no event be obliged to take any action in order to cause the exercise
of any Option, SAR, or PSU.
SECTION 9.3 MODIFICATION, EXTENSION, AND RENEWAL OF RIGHTS. Subject to the
terms and conditions of the Plan and any Option Agreement or agreement granting
a SAR or PSU, the Committee may modify, extend or renew outstanding Options,
SARs, or PSUs; provided, however, that the Committee shall not, without
approval of the stockholders of MBC, reduce the Option Price of any outstanding
Option or increase the amount payable on exercise of any outstanding SAR or PSU
(except as expressly permitted by Article 7), or permit the surrender and
cancellation of any outstanding Option and the grant of a replacement Option,
or permit the surrender and cancellation of any outstanding SAR or PSU and the
grant of a replacement SAR or PSU. The Committee may not change the terms or
conditions attached to any outstanding Option, SAR, PSU, or share of Restricted
Stock in a manner that would adversely affect the rights of the Grantee without
the express written consent of the Grantee unless so permitted by the terms of
the Option Agreement or Restricted Stock Agreement.
SECTION 9.4 PLAN SUBJECT TO CHARTER AND BY-LAWS. This Plan is subject to
the Charter and By-laws of MBC, and any applicable federal or state laws, rules
or regulations.
SECTION 9.5 GENDER. As used herein the masculine gender shall include the
feminine as the identity of an employee may require.
SECTION 9.6 GOVERNING LAW. The validity, interpretation and administration
of the Plan, Option Agreements, Restricted Stock Agreements, and of any rules,
regulations, determinations or decisions made thereunder, and the rights of any
and all persons having or claiming to have any interest therein or thereunder,
shall be determined exclusively in accordance with the laws of the State of
Maryland, without regard to its conflict of laws rules and principles. Without
limiting the generality of the foregoing, the period within which any action in
connection with the Plan must be commenced shall be governed by the laws of the
State of Maryland without regard to the place where the act or omission
complained of took place, the residence of any party to such action or the
place where the action may be brought.
SECTION 9.7 HEADINGS. The headings in this Plan are for reference purposes
only and shall not affect the meaning or interpretation of the Plan.
SECTION 9.8 NOTICES. All notices and other communications made or given
pursuant to this Plan shall be in writing and shall be sufficiently made or
given if hand delivered, faxed, or mailed by certified mail, addressed to the
employee 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.
7
Exhibit 5.1
November 4, 1999
Mercantile Bankshares Corporation
Mercantile Bank & Trust Building
Two Hopkins Plaza
P. O. Box 1477
Baltimore, MD 21203
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Mercantile Bankshares Corporation,
a Maryland corporation (the "Corporation"), in connection with a registration
statement on Form S-8 filed with the Securities and Exchange Commission (the
"Registration Statement") pertaining to the registration of up to 3,000,000
shares of its Common Stock, $2.00 par value per share (the "Common Stock"), for
issuance and sale pursuant to the Corporation's 1999 Omnibus Stock Plan (the
"Plan").
In that connection, we have examined originals or copies of
such documents, corporate records and other instruments as we have deemed
necessary or appropriate for purposes of this opinion including, but not limited
to, the following: (i) the Registration Statement; (ii) the Articles of
Incorporation and the Bylaws of the Corporation, as amended and as currently in
effect; (iii) the Plan; (iv) certain resolutions of the Board of Directors of
the Corporation relating to the issuance of the Common Stock and the other
transactions contemplated by the Registration Statement; (v) a Certificate of
Good Standing from the Maryland State Department of Assessments and Taxation;
and (vi) such other documents as we have deemed necessary or appropriate as a
basis for the opinion set forth below. We have assumed, without independent
verification, the genuineness of signatures, the authenticity of documents and
the conformity with originals of copies.
Based on the foregoing, we are of the opinion that the Common
Stock has been duly authorized for issuance and when sold, issued and paid for
as contemplated in the Registration Statement, will have been validly issued and
will be fully paid and non-assessable shares of Common Stock of the Corporation
under the laws of the State of Maryland.
We are members of the Bar of the State of Maryland and the
opinions expressed herein are limited to the corporate laws of Maryland
pertaining to matters such as the issuance of stock, but not including the
"securities" or "blue sky" law of the State.
<PAGE>
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. By giving the foregoing consent, we do not admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ VENABLE, BAETJER AND HOWARD, LLP
------------------------------------
-2-
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
November 4, 1999
We hereby consent to the incorporation by reference in this
Registration Statement of Mercantile Bankshares Corporation on Form S-8 of our
report dated January 20, 1999, relating to the consolidated financial statements
of Mercantile Bankshares Corporation and Affiliates as of December 31, 1998 and
1997 and for each of the three years in the period ended December 31, 1998,
which report is incorporated by reference in the Annual Report on Form 10-K for
the year ended December 31, 1998, of Mercantile Bankshares Corporation. We also
consent to the reference to us under the caption "Experts".
/s/ PricewaterhouseCoopers, LLP
-------------------------------
Exhibit 24.1
MERCANTILE BANKSHARES CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned Directors of
MERCANTILE BANKSHARES CORPORATION, a Maryland Corporation, hereby constitute and
appoint H. FURLONG BALDWIN and ALAN D. YARBRO, or either of them acting alone,
the true and lawful agents and attorneys in fact of the undersigned in each case
with full power and authority in either of said agents and attorneys in fact, to
sign for the undersigned and in their respective names as Directors of the
Corporation the following filings of the Corporation with the Securities and
Exchange Commission:
(1) A Registration Statement, and any amendment or amendments
thereto, on Form S-8, registering shares of Common Stock
issuable under the Corporation's 1999 Omnibus Stock Plan;
(2) Any amendment or amendments to Registration Statement No.
33-44374 on Form S-8 with respect to Common Stock issuable
under the Corporation's Employee Stock Purchase Dividend
Reinvestment Plan;
(3) Any amendment or amendments to Registration Statement No.
33-44375 on Form S-8 with respect to Common Stock issuable
under the Corporation's (1989) Omnibus Stock Plan; and
(4) Any amendment or amendments to Registration Statement No.
33-44376 on Form S-8 with respect to Common Stock issuable
under the Corporation's Dividend Reinvestment and Stock
Purchase Plan.
Dated: April 28, 1999
<TABLE>
<CAPTION>
<S> <C> <C> <C>
/s/ Christian H. Poindexter Director s/s William J. McCarthy Director
- --------------------------- -----------------------
Christian H. Poindexter William J. McCarthy
/s/ Freeman A. Hrabowski, III Director s/s Richard O. Berndt Director
- ----------------------------- ---------------------
Freeman A. Hrabowski, III Richard O. Berndt
/s/ William R. Brody Director s/s Morris W. Offit Director
- -------------------- -------------------
William R. Brody Morris W. Offit
/s/ Robert A. Kinsley Director s/s H. Furlong Baldwin Director
- --------------------- ----------------------
Robert A. Kinsley H. Furlong Baldwin
/s/ George L. Bunting, Jr. Director Director
- --------------------------
George L. Bunting, Jr.
/s/ Mary Junck Director Director
- --------------
Mary Junck
/s/ Cynthia A. Archer Director Director
- ---------------------
Cynthia A. Archer
/s/ Thomas M. Bancroft, Jr. Director
- ---------------------------
Thomas M. Bancroft, Jr.
</TABLE>
