exv10wxx



 



Exhibit 10.XX


EXECUTIVE SEVERANCE AGREEMENT



     AGREEMENT by and between Mercantile Bankshares Corporation (the
“Company”), and Peter W. Floeckher, Jr. (the “Executive”), effective as of the
10th day of March, 2004.




     WHEREAS: The Executive has agreed to serve as Executive Vice President –
Affiliate Administration of the Company; and




     WHEREAS: The Board of Directors of the Company (the “Board”), acting upon
the recommendation of its Compensation Committee, has determined that it is in
the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive as a key executive
of the Company, notwithstanding the possibility, threat or occurrence of a
Change of Control (as defined below) of The Company. 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 the Company and
its shareholders should the possibility of a Change of Control of the Company
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 the Company to enter
into this Agreement.


     NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:


     1.     Certain Definitions.


          (a) “Cause” shall mean (i) an act or acts of personal dishonesty
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:



               (i) The acquisition (other than from the Company) 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, the Company or its subsidiaries, and excluding
any acquisition of securities by any employee benefit plan of the Company 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 the Company or the combined voting power of the Company’ 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 the Company 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 the Company, 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




-2-






 





connection with an actual or threatened election contest relating to the
election of the Directors of the Company 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 the Company 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
the Company 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 the Company or the sale of all or substantially all of the assets of the
Company.



          (c) “Change of Control Period” shall mean the period commencing on
the date hereof and ending on the third anniversary of such date;
provided, however, 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, 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 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
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.




-3-






 





          (e) “Effective Date” shall mean the first date during the “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 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
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




-4-






 





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
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




-5-






 





Executive hereunder or preclude the Executive from asserting such fact or
circumstance in enforcing his rights hereunder.


     2.     Obligations of the Company upon Termination.


          (a) Death. If the Executive’s employment is terminated 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 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 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, 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




-6-






 





of compensation (as defined in Section 280G(b)(3) of
the Internal Revenue Code of 1986 (the “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.


          (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 the
Company 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 The Company. 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 the Company 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.


          (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




-7-






 





Executive under any of the provisions of this Agreement. The
Company agrees to pay, to the 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.


          (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




-8-






 





collectively referred to as the “Excise Tax”),
payment (a “Gross-Up Payment”) shall be made to 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 the Company 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





-9-






 





Company should have been made (“Underpayment”), consistent with the
calculations required to 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




-10-






 





contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any 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 sue 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 sue 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




-11-






 





is made that the Executive shall not be entitled to any refund
with respect to such claim and the 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.


     (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.


          (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.




-12-






 





          (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:




	 	If to the Executive:




	 	Peter W. Floeckher, Jr.

Mercantile Bankshares Corporation

2 Hopkins Plaza

Baltimore, Maryland 21201




	 	If to the Company:




	 	Mercantile Bankshares Corporation

2 Hopkins Plaza

Baltimore, Maryland 21201

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) 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.



          (e) 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.



          (f) This Agreement contains the entire understanding of the Company and
the Executive with respect to the subject matter hereof, preserving, however,
the rights and




-13-






 





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.
Notwithstanding any provision hereof, nothing in this agreement shall be
construed as creating or affirming the existence of any employment agreement
between 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 the
Company 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:	 	 
	 	 	
By: /s/ Peter W. Floeckher, Jr.
	
	 	


	 	 	
PETER W. FLOECKHER, JR.



-14-






 




	 	 	 
	ATTEST:	 	
MERCANTILE BANKSHARES
	 	 	
CORPORATION
	 	 	 
	By: /s/ John L. Unger	 	
By: /s/ Edward J. Kelly, III
	
	 	


	JOHN L. UNGER	 	
EDWARD J. KELLY, III
	Secretary	 	
Chairman and Chief Executive Officer




-15-