Exhibit 10 V
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 Xxxxxx X. Xxxxx, III (the "Executive"), dated as of the 2nd day
of February, 2001.
WHEREAS: The Executive has agreed to serve as President and Chief Executive
Officer of Mercshares and as Chairman of the Board and Chief Executive Officer
of 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
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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 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 on the
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date hereof and ending on the third anniversary of such date; provided, however,
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that commencing on the date one year after the date hereof, and on each 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.
(d) "Date of Termination" shall mean for purposes of this Agreement
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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 Executive's
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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 "Change of
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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 which is
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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 (from the
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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 by reason of
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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 terminated by reason
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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 Executive's employment
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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, at any time
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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 full
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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 the
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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 Exeuctive 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 Excise Tax or income
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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 Exeuctive 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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Xxxxxx X. Xxxxx, III
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.
(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.
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(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/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxx, III
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XXXX X. XXXXXX XXXXXX X. XXXXX, III
ATTEST: MERCANTILE BANKSHARES
CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxx Xxxxxxx
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XXXX X. XXXXXX X. XXXXXXX XXXXXXX
Secretary President and Chief
Executive Officer
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ATTEST: MERCANTILE-SAFE DEPOSIT
& TRUST COMPANY
/s/ Xxxx X. Xxxxxx By: /s/ X. Xxxxxxx Xxxxxxx
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XXXX X. XXXXXX X. XXXXXXX XXXXXXX
Secretary Chief Executive Officer
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