Exhibit 10 X
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Executive Severance Agreement
with Xxxxxxx Xxxxxx-Xxxxx
Exhibit 10 X
EXECUTIVE SEVERANCE AGREEMENT
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AGREEMENT by and between Mercantile Bankshares Corporation
("Mercshares"), Mercantile-Safe Deposit & Trust Company ("Merc-Safe")
(collectively the "Company"), and Xxxxxxx Xxxxxx-Xxxxx (the "Executive"),
effective on the 1st day of February, 2002.
WHEREAS: The Executive has agreed to serve as Chairman, Investment and
Wealth Management of Mercshares and Merc-Safe; and
WHEREAS: The Board of Directors of Mercshares (the "Board"), acting
upon the recommendation of its Compensation Committee, has determined that it is
in the best interests of Mercshares and its shareholders to assure that the
Company will have the continued dedication of the Executive as a key executive
of Mercshares and Merc-Safe, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of Mercshares. The Board
believes it is necessary to diminish the inevitable distraction of the Executive
by virtue of the personal uncertainties and risks created by a pending or
threatened Change of Control, to encourage the Executive's full attention and
dedication to the Company currently and in the event of any threatened or
pending Change of Control (including determinations as to the best interests of
Mercshares and its shareholders should the possibility of a Change of Control of
Mercshares arise), and to provide the Executive with compensation arrangements
upon a Change of Control which provide the Executive with individual financial
security and which are competitive with those of other corporations and, in
order to accomplish these objectives, the Board has caused Mercshares to enter
into this Agreement. The Board of Directors of Merc-Safe has made similar
determinations and has caused Merc-Safe to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
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(a) "Cause" shall mean (i) an act or acts of personal dishonesty
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taken by the Executive and intended to result in substantial personal enrichment
of the Executive at the
expense of the Company, (ii) repeated material violations by the Executive of
his duties to the Company (as in effect immediately prior to the Effective Date)
which are demonstrably willful and deliberate on the Executive's part and which
are not remedied in a reasonable period of time after receipt of written notice
from the Company, or (iii) the conviction of the Executive of a felony.
(b) "Change of Control" shall mean:
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(i) The acquisition (other than from Mercshares) by any person,
entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 as in effect on the date hereof (the "Exchange
Act"), (excluding, for this purpose, Mercshares or its subsidiaries, and
excluding any acquisition of securities by any employee benefit plan of
Mercshares or its subsidiaries which shall have occurred prior to any other
event constituting a Change of Control hereunder) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act as in
effect on the date hereof) of 20% or more of either the then outstanding shares
of common stock of Mercshares or the combined voting power of Mercshares' then
outstanding voting securities entitled to vote generally in the election of
directors (such common stock or then outstanding voting securities being
referred to herein as "Voting Securities"), calculated on the date of the
transaction causing the foregoing 20% test to be met, without regard to any
limitation upon the voting rights of any acquiring person under Maryland
statutes and without regard to the potential exercisability of rights, not
exercised on such date, pursuant to any Shareholder Protection Rights Agreement
of Mercshares then in effect; or
(ii) Individuals who, as of the date hereof, constitute the
Board (as of the date hereof the "Incumbent Board") cease for any reason to
constitute at least 75% of the members of the Board, provided that any person
becoming a director subsequent to the date hereof whose election, or nomination
for election by the shareholders of Mercshares, is approved by a vote of at
least a majority of the directors then comprising the Incumbent Board (other
than an election or nomination of an individual whose initial assumption of
office is in connection
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with an actual or threatened election contest relating to the election of the
Directors of Mercshares or other actual or threatened solicitation of proxies by
or on behalf of persons other than the Board) shall be, for purposes of this
Agreement, considered as though such person were a member of the Incumbent
Board; or
(iii) Approval by the stockholders of Mercshares of (A) a
reorganization, merger, consolidation or statutory share exchange, in each case,
with respect to which persons who are the holders of the outstanding Voting
Securities of Mercshares immediately prior to such reorganization, merger,
consolidation or statutory share exchange do not, immediately thereafter, own
more than 75% of the combined voting power entitled to vote generally in the
election of directors of the entity resulting from such reorganization, merger,
consolidation or statutory share exchange, or (B) a liquidation or dissolution
of Mercshares or the sale of all or substantially all of the assets of
Mercshares.
(c) "Change of Control Period" shall mean the period commencing
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on the date hereof and ending on the third anniversary of such date; provided,
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however, that commencing on the date one year after the date hereof, and on each
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annual anniversary of such date (such date and each annual anniversary thereof
hereinafter referred to as the "Renewal Date"), the Change of Control Period
shall be extended automatically so as to terminate on the third anniversary of
such Renewal Date, unless at least 60 days prior to the Renewal Date the Company
shall give notice that the Change of Control Period shall not be so extended,
but no such notice shall be given by the Company which would cause the Change of
Control Period to expire during the term of any employment agreement between the
Company and the Executive.
(d) "Date of Termination" shall mean for purposes of this
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Agreement the date of receipt of the Notice of Termination or any later date
specified therein, as the case may be; provided, however, that if the
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Executive's employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the Company
notifies the Executive of such termination.
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(e) "Effective Date" shall mean the first date during the
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"Change of Control Period" on which a Change of Control occurs provided that the
Executive is employed by the Company on such date. Anything in this Agreement to
the contrary notwithstanding, if the Executive's employment with the Company has
terminated for any reason prior to the first date on which a Change of Control
occurs, this Agreement shall be null and void as of the date of such termination
of employment; provided, however, that if it is reasonably demonstrated that
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such termination (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control, or (ii) otherwise arose in
connection with or anticipation of a Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date immediately prior to the
date of such termination.
(f) "Good Reason" shall mean any of the following actions
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which is effected by the Company without the consent of the Executive:
(i) The assignment to the Executive of any duties
inconsistent in any respect with the Executive's position immediately prior to
the Effective Date (including status, offices, titles and reporting
requirements, authority, duties or responsibilities) or any other action by the
Company that results in a diminution in such position or in the nature and
quality of Executive's office facilities, secretarial and support assistance,
excluding for this purpose an isolated, insubstantial and inadvertent action
that is not taken in bad faith and that is remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) Any reduction in Executive's compensation or
benefits from the levels of compensation and benefits in effect immediately
prior to the Effective Date (whether or not such reduction would be permitted
under any employment agreement), including but not limited to salary, bonuses
(under an annual incentive compensation plan or otherwise), expense allowance,
vacation time or other vacation benefits, excusal from performance of duties
under Company policies or agreements (by reason of illness, disability or other
factors), continuance of all Executive benefits and benefit plans and
preservation of Executive's levels of participation and benefits thereunder
(including any agreement between the Company and
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Executive, incentive compensation plan, deferred compensation arrangement,
pension or other retirement or profit-sharing plan, thrift and medical
reimbursement plan, health insurance or other health or disability plan, life
insurance plan, omnibus stock plan, stock option plan, stock purchase plan,
stock appreciation right plan, or any other Executive benefit plan or provision
for fringe benefits in effect immediately prior to the Effective Date), other
than an isolated, insubstantial or inadvertent failure to provide compensation
or benefits that is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) The Company's requiring the Executive to be based
at any office or location other than the Company's principal offices within the
City of Baltimore, except for travel reasonably required in the performance of
the Executive's responsibilities;
(iv) Any purported termination by the Company of the
Executive's employment otherwise than as expressly contemplated hereunder in the
case of Cause, or death pursuant to Section 2(a) of this Agreement, or
Disability pursuant to Section 2(b) of this Agreement; or
(v) Any failure by the Company to comply with and
satisfy Section 6(c) of this Agreement.
For purposes of this Agreement, any good faith determination of
"Good Reason" made by the Executive shall be conclusive.
(g) "Notice of Termination" shall mean a written notice
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(from the Executive to the Company, or from the Company to the Executive, as the
case may be) that (i) indicates the specific basis for termination of
employment, (ii) sets forth in reasonable detail the facts and circumstances
claimed to provide the basis for termination of the Executive's employment, and
(iii) if the Date of Termination is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than 15
days after the giving of such notice). The failure by the Executive to set forth
in a Notice of Termination any fact or circumstance that contributes to a
showing of Good Reason shall not waive any right of the
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Executive hereunder or preclude the Executive from asserting such fact or
circumstance in enforcing his rights hereunder.
2. Obligations of the Company upon Termination.
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(a) Death. If the Executive's employment is terminated
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by reason of the Executive's death prior to the delivery (i) by the Executive to
the Company of a Notice of Termination for Good Reason or (ii) by the Company to
the Executive of any notification of termination of the Executive's employment
other than for Cause or Disability, then this Agreement shall terminate without
further obligations to the Executive's legal representatives under this
Agreement.
(b) Disability. If the Executive's employment is
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terminated by reason of the Executive's Disability, this Agreement shall
terminate without further obligations to the Executive under this Agreement. For
purposes of this Agreement, "Disability" shall mean termination of the
Executive's employment on account of disability as determined under any
governing agreement between the Executive and the Company or, if there is no
such agreement or such agreement does not provide a definition of "disability,"
then "Disability" shall mean disability as defined under the Company's long-term
disability insurance plan.
(c) Cause; Other Than for Good Reason. If the
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Executive's employment shall be properly terminated for Cause or if the
Executive terminates employment other than for Good Reason, this Agreement shall
terminate without further obligations to the Executive under this Agreement.
(d) Good Reason; Other Than for Cause or Disability. If,
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at any time during the period beginning with the Effective Date and ending on
the third anniversary of such date, the Company shall terminate the Executive's
employment other than for Cause, Disability or death, or if the Executive shall
terminate his employment with the Company for Good Reason, the Company shall pay
to the Executive in a lump sum in cash within 30 days after the Date of
Termination a severance payment, the value of which is three times the
Executive's base amount of compensation (as defined in Section 280G(b)(3) of the
Internal Revenue Code of 1986 (the
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"Code")) including, but not limited to, such items as salary, bonus, fringe
benefits, and deferred compensation, less one dollar ($1.00), subject, however,
to Section 3(b) of this agreement.
3. Non-Exclusivity of Rights.
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(a) Nothing in this Agreement shall prevent or limit the
Executive's continuing or future participation in any benefit, bonus, incentive
or other plans, programs, policies or practices, including those of the types
identified in Section 1(f)(ii) hereof, provided by the Company or any
subsidiaries of Mercshares and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have
under any employment agreement, stock option or other agreements with the
Company or any subsidiaries of Mercshares. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of the Company or any subsidiary of Mercshares at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program.
(b) If any benefit in the form of continued or
additional salary or bonus, or both, following termination of employment, is
provided for the Executive under any employment agreement with the Company
("Alternate Base Benefit"), the aggregate amount thereof shall be computed upon
the Date of Termination, and the cash payment to the Executive under Section
2(d) of this Agreement shall be the greater of the Alternate Base Benefit or the
amount set forth in said Section 2(d), and such payment shall satisfy the
Company's obligation with respect to the Alternate Base Benefit.
4. Full Settlement.
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(a) The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action that the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement. The Company
agrees to pay, to the
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full extent permitted by law, all legal fees and expenses that the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company or others of the validity or enforceability of, or liability
under, any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive about the amount of any
payment pursuant to Section 5 of this Agreement), plus in each case, interest at
the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
(b) If there shall be any dispute between the
Company and the Executive (i) in the event of any termination of the Executive's
employment by the Company, whether such termination was for Cause, or (ii) in
the event of any termination of employment by the Executive, whether Good Reason
existed, then, unless and until there is a final, nonappealable judgment by a
court of competent jurisdiction declaring that such termination was for Cause or
that the determination by the Executive of the existence of Good Reason was not
made in good faith, the Company shall pay all amounts, and provide all benefits
to the Executive that the Company would be required to pay or provide pursuant
to this Agreement as though such termination were by the Company without Cause,
or by the Executive with Good Reason; provided, however, that the Company shall
not be required to pay any disputed amount pursuant to this paragraph except
upon receipt of an undertaking by or on behalf of the Executive to repay all
such amounts to which the Executive is ultimately adjudged by such court not to
be entitled.
5. Certain Tax Matters.
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(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment or
distribution by the Company to or for the benefit of the Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 5) (a"Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties are incurred by
the Executive with respect to such excise tax (such excise tax, together with
any such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), payment (a "Gross-Up Payment") shall be made to
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the Executive in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 5(c),
all determinations required to be made under this Section 5 including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such determination, shall be
made by PricewaterhouseCoopers, LLP, or such other firm as shall be serving as
independent public accountants for Mercshares immediately prior to the Effective
Date (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change of Control, the Executive may appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by
the Company to the Executive within five days of the receipt of the Accounting
Firm's determination. If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Executive with a written opinion
that failure to report the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition of a negligence or similar
penalty. Any determination by the Accounting Firm shall be binding upon the
Company and the Executive. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to
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be made hereunder. In the event that the Company exhausts its remedies pursuant
to Section 5(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable but no later than ten business days after
the Executive is informed in writing of such claim and shall apprise the Company
of the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Executive shall:
(i) give the Company any information
reasonably requested by the Company relating to such claim,
(ii) take such action in connection with
contesting such claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith
in order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided, however, that the Company shall
bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any
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Excise Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 5(c), the Company
shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 5(c), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company's complying with the requirements of Section 5(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Section 5(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the
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Company does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
6. Successors.
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(a) This Agreement is personal to the Executive
and without the prior written consent of the Company shall not be assignable by
the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, share exchange
or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
7. Miscellaneous.
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(a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications
hereunder shall be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
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If to the Executive:
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Xxxxxxx Xxxxxx-Xxxxx
Mercantile Bankshares Corporation
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
If to the Company:
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Mercantile Bankshares Corporation
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) Any act, omission, right, obligation or
activity of Mercshares or Merc-Safe shall be deemed an act, omission, right,
obligation or activity of the Company hereunder, and each of Mercshares and
Merc-Safe is jointly and severally liable under this Agreement. The
unenforceability or invalidity of this Agreement with respect to either such
party shall not affect the enforceability or validity of this Agreement with
respect to the other such party.
(e) The Company may withhold from any amounts
payable under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
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(f) The Executive's failure to insist upon
strict compliance with any provision hereof shall not be deemed to be a waiver
of such provision or any other provision thereof.
(g) This Agreement contains the entire
understanding of the Company and the Executive with respect to the subject
matter hereof, preserving, however, the rights and obligations of any party
under any employment agreement or other agreements or benefit plans.
Notwithstanding any contrary provision of any other agreement, following any
termination of Executive occurring after the Effective Date, whether for Cause,
Good Reason or any other reason, Executive shall be free to engage in any
activity competitive with any activity of the Company or any affiliate of the
Company, through employment by or ownership of securities of any other entity or
otherwise. Upon and following the Effective Date, the definition of "Cause" in
Section 1(a) of this Agreement shall supercede and replace any definition of
"cause" or "good cause" for termination of employment in any employment
agreement between the Executive and the Company.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and, pursuant to the authorization from their respective Board of Directors,
each of Mercshares and Merc-Safe has caused these presents to be executed in its
name and on its behalf, all as of the day and year first above written.
WITNESS:
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxxx-Xxxxx
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Xxxxxxx Xxxxxx-Xxxxx
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ATTEST: MERCANTILE BANKSHARES
CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx, III
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XXXX X. XXXXXX XXXXXX X. XXXXX, III
Secretary President and Chief
Executive Officer
ATTEST: MERCANTILE-SAFE DEPOSIT
& TRUST COMPANY
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx, III
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XXXX X. XXXXXX XXXXXX X. XXXXX, III
Secretary Chairman and Chief Executive Officer
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