AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is made by and between EVERBANK FINANCIAL
CORP (“Company”), a Florida corporation, and W. XXXXX XXXXXX
(“Employee”), a resident of the State of Florida, as of October 31, 2008 (the
“Effective Date”), as amended and restated as of December 23, 2008.
Recitals
A. Company is engaged in the business of providing financial products and services.
B. Employee and Company desire to enter into an employment agreement that
provides Employee with certain rights and benefits during the term of his employment with
Company and in the event of termination of his employment with the Company.
C. The Company wishes to protect its competitive business interests by providing
certain express restrictions on Employee’s activities after termination.
| NOW, THEREFORE, Company and Employee do hereby covenant and agree as follows: |
AGREEMENT
1. Employment. The Company hereby employs Employee and Employee hereby accepts
employment upon the terms and conditions set forth in this Agreement.
2. Duties and Responsibilities. The Employee is engaged by the Company in an
executive capacity as President and Chief Financial Officer. Employee is subject to the direction
and control of the Board of Directors (the “Board”) and shall perform duties as the Board
of the Company may from time to time reasonably request. Employee shall report to the Chief
Executive Officer of the Company (the “EverBank CEO”). Employee agrees that he will serve
the Company faithfully and to the best of his ability and devote his full working time to the
business affairs of the Company and the promotion of its business in accordance with the Company’s
reasonable directions and specifications. Employee shall continue to devote his time, attention
and energies to the Company’s business consistent with his conduct prior to the effective date of
this Agreement.
3. Term. The term of employment hereunder shall begin on the Effective Date and end on
the second anniversary of the Effective Date (the “Initial Employment Term”), provided that
the Initial Employment Term shall be automatically extended for additional terms of successive one
(1) year periods (each, an “Additional Employment Term”) unless the Company or Employee
gives written notice to the other at least ninety (90) days prior to the expiration of the
Employment Term or then-current Additional Employment Term that the Employee’s employment shall not
be so extended. The Initial Employment Term and each Additional Employment term shall be referred
to herein as the “Employment Term.”
4. Compensation and Benefits. During the term of this Agreement, in consideration of
services rendered hereunder, Employee shall receive:
(a) Salary. An annual base salary (“Base Salary”) equal to the amount in
effect as of the date hereof and payable at such intervals during the month as the Company
regularly pays its other employees, for the period during which the Employee is employed, through
and including the date of termination of employment in accordance with the termination provisions
of this Agreement. Company shall review Employee’s Base Salary at least annually, with the
approval of the Board, and may adjust the Base Salary in accordance with historical norms and
prevailing economic conditions and considering Employee’s job performance.
(b) Bonus. An incentive bonus in accordance with any incentive bonus plan for
executive employees of Company in effect at that time (the “Incentive Bonus Plan”) which
currently provides Employee with an opportunity to receive a targeted amount of 100 percent of his
Base Salary; provided, however, that the Incentive Bonus Plan may be redesigned or altered by the
Board to reflect new corporate objectives, new measurement devices, current economic conditions
and any new responsibilities then assigned to Employee. Employee shall be eligible to participate
in any redesigned Incentive Bonus Plan to the same extent as other executive employees with
comparable responsibilities.
(c) Fringe Benefits. Employee shall be eligible to participate in employee benefits
provided by Company on the same basis as its other executive employees.
(d) Regulations. The provisions of 12 CFR Section 563.39 shall be deemed by Company
and Employee to be incorporated into and made a part of this Employment Agreement. Any payments
made to Employee pursuant to this Employment Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 USC Section 1828(k) and FDIC regulation 12 CFR Part 359,
Golden Parachute and Indemnification Payments.
5. Termination by Company for Cause. Company shall have the right at any
time to terminate the employment of the Employee for Cause. If Employee is terminated for Cause,
Employee’s Base Salary and other benefits provided in Section 4 hereof shall terminate as of the
effective date of termination and Employee shall forfeit all rights to any other payments provided
under this Agreement). For purposes of this Agreement, “Cause” means:
(a) Willful Failure to Perform Duties. The willful and substantial failure or refusal
of Employee (unless Employee shall be ill or disabled) to perform duties assigned to Employee
consistent with his executive position, which failure or refusal is not remedied by Employee
within thirty (30) days after written notice of such failure or refusal from the Board or the
EverBank CEO;
(b) Material Breach of Fiduciary Duties. A material breach of Employee’s fiduciary
duties to the Company (such as obtaining secret profits from the Company), where such breach
constituted an act or omission performed or made willfully, in bad faith and without a reasonable
belief that such act or omission was within the scope of the Employee’s employment hereunder;
(c) Gross Negligence or Willful Misconduct. Gross negligence or willful misconduct by
Employee in the execution of Employee’s professional duties which is materially injurious to the
Company; or
(d) Illegal Conduct. Employee’s engaging in illegal conduct (other than traffic
violations or other minor offenses) which results in a conviction of a felony (or a no contest or
nolo contendere plea thereto) which is not subject to further appeal and which is materially
injurious to the business or public image of the Company.
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6. Termination by Employee.
(a) Good Reason. Employee may terminate this Agreement for Good
Reason at any time upon thirty (30) days’ prior written notice to Company. “Good Reason”
shall exist upon the occurrence of any of the following events:
(i) Duties Inconsistent with Those Contemplated Herein. The
Company assigns to Employee duties inconsistent with Employee’s duties as contemplated under this
Agreement; excluding for this purpose an isolated action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by Employee;
(ii) Adverse Change in Duties. An adverse change in Employee’s position as a result
of significant diminution in Employee’s duties or responsibilities, other than an isolated change
not occurring in bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Employee;
(iii) Reduction in Compensation. The Company reduces the Base Salary of Employee
and/or target bonus opportunity under the Incentive Bonus Plan, other than an isolated reduction
not occurring in bad faith and which is not remedied by the Company promptly after notice given by
Employee or any redesign or alteration of the Incentive Bonus Plan made by the Board to reflect
new corporate objectives, new measurement devices or current economic conditions;
(iv) Relocation of Principal Office. The Company shall require Employee to relocate
Employee’s principal office beyond a radius of fifty (50) miles from Employee’s principal office
as of Effective Date; or
(v) Company’s Breach of Material Obligations. The Company fails to satisfy or perform
any of its material obligations set forth in this Agreement.
(b) Rights and Obligations Upon Termination for Good Reason. In the
event of such termination for Good Reason: (1) the Company and Employee shall be released from any
and all further obligations under this Agreement, except those stated
in Sections 9 (Duties Upon
Termination) and 10 (Restrictive Covenants) hereof; and (2) Employee shall be entitled to the
following severance benefits and rights.
(i) Payment. The Company shall pay Employee an amount equal to
two times the average of his annual Base Salary as in effect for the year in which the Date of
Termination occurs and the immediately preceding year, plus two times the average of Employee’s
target bonus for the year in which the Date of Termination occurs and Employee’s actual bonus for
the immediately preceding year (collectively, the “Cash Severance Payments”). The Cash
Severance Payments shall be payable in equal installments over a twenty-four (24) month period (the
“Severance Payment Period”), per the normal payroll practices of the Company, less
applicable payroll deductions. Notwithstanding the foregoing, prior to the completion of the first
twelve (12) months of the Restriction Period, as defined below, Employee may elect to be released
from the remaining six (6) months of the Restriction Period, in which case Employee shall forfeit
the remaining Cash Severance Payments that would otherwise have been payable over the last twelve
(12) months of the Severance Payment Period (the “Severance Payment Forfeiture Election”).
Each such payment shall be treated as a separate payment for purposes of Section 409A of the
Internal
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Revenue Code of 1986, as amended (the “Code”). The Cash Severance Payments
will be made only if Employee signs a valid general release of claims against the Company and any
of its agents or principals on a form provided by the Company and if Employee complies with the
terms of Sections 9 (Duties Upon Termination)
and 10 (Restrictive Covenants), provided, however,
that the general release of claims shall not include a release of any claims relating to
Employee’s rights hereunder or any claims related to the vesting, exercisability, acceleration,
sale or valuation of Employee’s Company stocks, stock options or restricted stock.
(ii) Benefits. The Company shall pay Employee the cost the Company would have incurred
had Employee continued group medical, dental, and hospitalization coverage for himself and his
eligible dependents under the group health plan(s) sponsored by Company covering the Employee and
his eligible dependents at the time of the Employee’s termination of employment (the “Health
Coverage”) for twenty-four (24) months (or twelve (12) months if Employee has made a Severance
Payment Forfeiture Election); provided, however, that (A) such Health Coverage shall be provided at
the same level of benefits as is generally available to similarly situated employees and is subject
to any modifications made to the same health coverage provided to similarly situated employees,
including but not limited to termination of the group health plans sponsored by Company; (B) for
the first eighteen (18) months (or the twelve (12) month period if Employee has made a Severance
Payment Forfeiture Election), the Company shall pay the excess of the COBRA cost of such coverage
over the amount that Employee would have had to pay for such coverage if he had remained employed
during the applicable twenty-four (24) month period (or the applicable twelve (12) month period if
Employee has made a Severance Payment Forfeiture Election) and paid the active employee rate for
such coverage (the “Monthly COBRA Cost”); and (C) the time during which the Employee
receives the Health Coverage shall run concurrently with any period for which the Employee is
eligible to elect health coverage under COBRA. If Employee has not made a Severance Payment
Forfeiture Election, the Company shall pay to the Employee during the nineteenth (19th)
month a lump sum cash payment equal to the Monthly COBRA Cost multiplied by six (6). If Employee
becomes eligible to receive group health benefits under a program of a subsequent employer or
otherwise (including self-employment and coverage available to Employee’s spouse), the Company’s
obligation to pay any portion of the cost of health coverage as described herein shall cease,
except as otherwise provided by law. In order to receive these benefits, Employee must sign a valid
general release of claims against the Company and any of its agents or principals (as described in
subsection 6(b)(i) above) and comply with the terms of
Sections 9 (Duties Upon Termination) and
10
(Restrictive Covenants).
(c) Employee’s Failure to Renew Employment Term. A notice by Employee of a
non-renewal of the Employment Term pursuant to Section 3 hereof shall be deemed to be a voluntary
termination of employment by Employee without Good Reason as of the end of the Employment Term,
unless Employee has otherwise terminated this Agreement for Good Reason pursuant to Section 6
hereof.
7. Termination by Company Without Cause. Company may terminate this
Agreement without Cause (as defined in Section 5), upon thirty (30) days’ prior written notice to
Employee. In the case of such termination by the Company, the Company and Employee shall be
released from any and all further obligations under this Agreement, except those stated in
Sections 9 (Duties Upon Termination) and 10 (Restrictive Covenants) herein, and Employee shall be
entitled to the following severance benefits and rights.
(a) Payment. The Company shall pay Employee an amount equal to the Cash Severance
Payments payable in equal installments over the Severance Payment Period, per the normal payroll
practices of the Company, less applicable payroll deductions. Notwithstanding the
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foregoing, prior to the completion of the first twelve (12) months of the Restriction Period,
Employee may elect to be released from the remaining six (6) months of the Restriction Period by
making a Severance Payment Forfeiture Election in the manner
described in
Section 6(b)(i) above.
Each such payment shall be treated as a separate payment for purposes of Section 409A of the Code.
The Cash Severance Payments will be made only if Employee signs a valid general release of claims
against the Company and any of its agents or principals on a form provided by the Company and if
Employee complies with the terms of Sections 9 (Duties
Upon Termination) and 10 (Restrictive
Covenants), provided, however, that the general release of claims shall not include a release of
any claims related to the vesting, exercisability, acceleration, sale or valuation of Employee’s
Company stocks, stock options or restricted stock.
(b) Benefits. The Company shall pay Employee the cost the Company would have incurred
had Employee continued Health Coverage at the time of the Employee’s termination of employment for
twenty-four (24) months (or twelve (12) months if Employee has made a Severance Payment Forfeiture
Election); provided, however, that (A) such Health Coverage shall be provided at the same level of
benefits as is generally available to similarly situated employees and is subject to any
modifications made to the same health coverage provided to similarly situated employees, including
but not limited to termination of the group health plans sponsored by Company; (B) for the first
eighteen (18) months (or the twelve (12) month period if Employee has made a Severance Payment
Forfeiture Election), the Company shall pay the excess of the COBRA cost of such coverage over the
amount that Employee would have had to pay for such coverage if he had remained employed during the
applicable twenty-four (24) month period (or the applicable twelve (12) month period if Employee
has made a Severance Payment Forfeiture Election) and paid the active employee rate for such
coverage (the “Monthly COBRA Cost”); and (C) the time during which the Employee receives
the Health Coverage shall run concurrently with any period for which the Employee is eligible to
elect health coverage under COBRA. If Employee has not made a Severance Payment Forfeiture
Election, the Company shall pay to Employee during the nineteenth (19th) month a lump
sum cash payment equal to the Monthly COBRA Cost multiplied by six (6). If Employee becomes
eligible to receive group health benefits under a program of a subsequent employer or otherwise
(including self-employment and coverage available to Employee’s spouse), the Company’s obligation
to pay any portion of the cost of health coverage as described herein shall cease, except as
otherwise provided by law. In order to receive these benefits, Employee must sign a valid general
release of claims against the Company and any of its agents or principals (as described in
subsection 7(a) above) and comply with the terms of
Sections 9 (Duties Upon Termination) and 10
(Restrictive Covenants).
(c) Company’s Failure to Renew Employment Term. A notice by Company of a non-renewal
of the Employment Term pursuant to Section 3 hereof shall be deemed an involuntary termination of
Employee by the Company without Cause as of the end of the Employment Term, but Employee may
terminate at any time after the receipt of such notice and shall be treated as if he was
terminated without Cause as of such date.
8. Termination Upon Death or Disability. This Agreement shall
terminate
automatically upon Employee’s death or disability. For purposes of the Agreement, Employee shall
be deemed disabled if he is physically or mentally unable to discharge his duties hereunder for a
period of ninety (90) consecutive days or one hundred twenty (120) non-consecutive days in any one
hundred eighty (180) day period. In the event of Employee’s death or disability, Employee’s Base
Salary shall terminate as of the effective date of termination because of death or disability, and
the Company shall pay to Employee or his designated beneficiary or estate the prorated portion
(based on the effective date of his termination) of the payment Employee would have received under
the Incentive Bonus Plan for the year of Employee’s termination. Such payment shall be
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made at the time the payment would have been made absent death or disability.
9. Duties
Upon Termination. In the event the employment of Employee is terminated for
any reason whatsoever, Employee shall deliver immediately to Company all manuals, mailing lists,
customer lists, advertising materials, ledgers, supplies, equipment, checks, xxxxx cash, Company
credit cards, and all other materials and records containing confidential information of any kind
of the Company or its affiliates that may be in Employee’s possession or under his control which
belong to the Company or its affiliates or have been obtained from the Company or its affiliates
by the Employee, including any and all copies of such items previously described in this section.
10. Restrictive Covenants.
(a) Acknowledgements. Subject to the limitations of reasonableness imposed by law,
Employee shall be subject to the restrictions set forth in this
Section 10.
(b) Definitions. The following capitalized terms used in this Agreement shall have
the meanings assigned to them below, which definitions shall apply to both the singular and the
plural forms of such terms:
“Competitive Services” means the provision of services on behalf of any person or entity
principally engaged in the banking, residential mortgage banking, or investment banking business
in the capacity of a director, consultant or an executive or officer at a senior level within such
entity.
“Confidential Information” means all information regarding the Company, its activities,
business or clients that is the subject of reasonable efforts by the Company to maintain its
confidentiality and that is not generally disclosed by practice or authority to persons not
employed by the Company, but that may not rise to the level of a Trade Secret under applicable
law. “Confidential Information” shall include, but is not limited to, financial plans and data
concerning the Company; management planning information; business plans; operational methods;
market studies; marketing plans or strategies; customer lists; customer files, data and financial
information, details of customer contracts; current and anticipated customer requirements;
identifying and other information pertaining to business referral sources; business acquisition
plans; and new personnel acquisition plans. “Confidential Information” shall not include
information that has become generally available to the public by the act of one who has the right
to disclose such information without violating any right or privilege of the Company. This
definition shall not limit any definition of “confidential information” or any equivalent term
under applicable law.
“Person” means any individual or any corporation, partnership, joint venture, limited
liability company, association or other entity or enterprise.
“Principal
or Representative” means a principal, owner, partner, stockholder, joint
venturer, investor, member, trustee, director, officer, manager, employee, agent, representative
or consultant.
“Protected
Customers” means any Person to whom the Company sold its products or services or
solicited to sell its products or services during the course of Employee’s employment and (a) with
whom Employee had business dealings on behalf of the Company; (b) for whom Employee supervised or
coordinated the dealings with the Company; or (c) about whom Employee
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obtained Trade Secrets or Confidential Information (as defined herein) as a result of his
employment.
“Protected Employees” means employees of the Company who were employed by the Company at any
time during the course of Employee’s employment and (a) with whom Employee had a supervisory
relationship; (b) with whom Employee worked or communicated on a regular basis; or (c) about whom
Employee obtained Trade Secrets or Confidential Information as a result of his association with the
Company.
“Restricted Period” means the duration of Employee’s employment with the Company and a period
of eighteen (18) months from the termination of such employment for any reason whatsoever.
Notwithstanding the foregoing, Employee may elect to be released from the last six (6) months of
the Restricted Period by making a Severance Payment Forfeiture Election.
“Restricted Territory” means the United State of America and any foreign country or territory
located within 100 miles of Jacksonville, Florida.
“Trade Secret” means all information, without regard to form, including, but not limited to,
technical or nontechnical data, source codes and object codes for Company software, compilations,
formulas, programs, devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans, distribution lists or lists of actual or
potential customers, advertisers or
suppliers, which is not commonly known by or available to the public and which information: (A)
derives economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. Without limiting the foregoing, Trade Secret means any item of
confidential information that constitutes a “trade secret(s)” under applicable common law or
statutory law.
(c) Restrictions on Disclosure and Use of Confidential Information and Trade Secrets.
Employee understands and agrees that the Confidential Information and Trade Secrets constitute
valuable assets of the Company, and may not be converted to Employee’s own use. Accordingly,
Employee hereby agrees that he or she shall not, directly or indirectly, at any time during the
Restricted Period, reveal, divulge, or disclose to any Person not expressly authorized by the
Company any Confidential Information, and Employee shall not, directly or indirectly, at any time
during the Restricted Period, use or make use of any Confidential Information in connection with
any business activity other than that of the Company. Throughout the course of his employment and
at all times after the date that his employment terminates for any reason, Employee shall not
directly or indirectly transmit or disclose any Trade Secret to any Person, and shall not make use
of any such Trade Secret, directly or indirectly, for himself or for others, without the prior
written consent of the Company. The Parties acknowledge and agree that this Agreement is not
intended to, and does not, alter either the Company’s rights or Employee’s obligations under any
state or federal statutory or common law regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Employee shall not be restricted from
disclosing or using Confidential Information that is required to be disclosed by law, court order
or other legal process; provided, however, that in the event disclosure is required by law,
Employee shall provide the Company with prompt notice of such requirement so that the Company may
seek an appropriate protective order prior to any such required disclosure by Employee.
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(d) Nonrecruitment of Protected Employees. Employee understands and agrees that the
relationship between the Company and each of its Protected Employees constitutes a valuable asset
of the Company and may not be converted to Employee’s own use. Accordingly, Employee hereby agrees
that during the Restricted Period, Employee shall not, without the prior written consent of the
Company, directly or indirectly, on Employee’s own behalf or as a Principal or Representative of
any Person, solicit or induce or attempt to solicit or induce any Protected Employee to terminate
his relationship with the Company or to enter into a relationship with any other Person.
(e) Nonsolicitation of Protected Customers. Employee understands and agrees that the
relationship between the Company and each of its Protected Customers constitutes a valuable asset
of the Company and may not be converted to Employee’s own use. Accordingly, Employee hereby agrees
that during the Restricted Period, Employee shall not, without the prior written consent of the
Company, directly or indirectly, on Employee’s own behalf or as a Principal or Representative of
any Person, solicit, divert, take away or attempt to solicit, divert or take away a Protected
Customer for the purpose of providing services similar to those provided by the Company.
(f) Noncompetition. Employee hereby agrees that during the Restricted Period,
Employee will not, without prior written consent of the Company, directly or indirectly, engage
in, sell or otherwise provide Competitive Services within the Restricted Territory on his own
behalf or as a Principal or Representative of any other Person; provided, however, that the
parties acknowledge and agree the provisions of this Section 10(f) shall not be deemed to prohibit
the ownership by Employee of not more than five percent (5%) of any class of securities of any
corporation having a class of securities registered pursuant to the Securities Exchange Act of
1934, as amended.
(g) Covenant to Return Property and Information. Employee agrees to return all of the
Company’s property within seven (7) days following the cessation of his employment for any reason,
or at any other time when a demand for such property is made by the Company. Such property
includes, but is not limited to, the original and any copy (regardless of the manner in which it
is recorded) of all information provided by the Company to Employee, or which Employee has
developed or collected in the scope of Employee’s employment with the Company, as well as all
Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices,
computers, cell phones, pagers, materials, documents, plans, records, notebooks, drawings, or
papers; provided, however, that Employee shall be entitled to retain a copy of this Agreement and
any documents relating to his income received from the Company or expenses incurred on behalf of
the Company or other information which pertains to his personal income tax returns.
(h) Remedies for Violation of Restrictive Covenants. The parties hereto specifically
acknowledge and agree that the covenants contained in this Section 10 (the “Restrictive Covenants”)
are made and given by Employee in connection with his continued employment with the Company and the
goodwill associated therewith and that the remedy at law for any breach of the foregoing would be
inadequate. In the event Employee breaches, or threatens to commit a breach of, any of the
Restrictive Covenants, the Company shall have the right and remedy, without the necessity of
proving actual damage or posting any bond, to enjoin, preliminarily and permanently, Employee from
violating or threatening to violate the Restrictive Covenants and to have the Restrictive Covenants
specifically enforced by any court or tribunal of competent jurisdiction, it being agreed that any
breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to the Company. Such right and
remedy shall be independent of any
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others and severally enforceable, and shall be in addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity. Employee agrees that the
pendency of any claim whatsoever against the Company shall not constitute a defense to the
enforcement of any Restrictive Covenant by the Company.
(i)
Severability. Employee acknowledges and agrees that each of the
Restrictive Covenants is reasonable and valid in time, scope of protected activity, geographic
area, and in all other respects. Each of the Restrictive Covenants shall be considered and
construed as separate and independent covenants. Should any part or provision of any of the
Restrictive Covenants be held invalid, void or unenforceable, such invalidity, voidness, or
unenforceability shall not render invalid, void, or unenforceable any other part or provision of
this Agreement or of this Section 10.
(j) Reformation. If any portion of the Restrictive Covenants is found to
be
invalid or unenforceable because the duration, the territory, or any other provision thereof is
considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be
redefined, or a new enforceable term provided, such that the intent of the Company and Employee in
agreeing to the Restrictive Covenants will not be impaired and the provision in question shall be
enforceable to the fullest extent of applicable law.
11. Entire Agreement. This Agreement sets forth the entire understanding between the
parties with respect to the terms of Employee’s employment and supersedes any prior agreements,
whether written or oral, concerning the subject matter, including, but not limited to, the
Employment Agreement entered into by and between the Company and Employee as of July 3, 2006.
Notwithstanding the foregoing, the terms of the Amended and Restated Stock Redemption and
Shareholders Agreement of EverBank Financial Corp, the EverBank Profit Sharing and Savings Plan
(or any successor plan or plans) and any Option or Restricted Unit Agreements relating thereto to
which Employee is a party, and any other benefit plans shall govern the subject matters thereof to
the extent not specifically provided otherwise herein. In the event of any inconsistency between
any such other agreement and this Agreement, the provisions of this Agreement shall control. This
Agreement cannot be amended except by a writing signed by both parties.
12. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,
in the event it shall be determined that any payment or distribution by the Company to or for the
benefit of the Employee (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 12) (a “Payment”) would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by Employee 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”), then Employee shall be entitled to receive
an additional payment (a “Gross-Up Payment”) in an amount such that after payment by
Employee 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, Employee retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this Section 12, including whether and when
a Gross-Up Payment is required and the amount of such Gross-Up Payment and
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the assumptions to be used in arriving at such determination, shall be made by an independent,
nationally recognized accounting firm or compensation consulting firm mutually acceptable to the
Company and Employee (the “Determination Firm”) which shall provide detailed supporting
calculations both to the Company and Employee within fifteen (15) business days after the receipt
of notice from Employee that there has been a Payment, or such earlier time as is requested by the
Company. In the event that the Determination Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, Employee may appoint another
nationally recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Determination Firm hereunder). All fees and
expenses of the Determination Firm shall be borne solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 12, shall be paid by the Company to Employee within five
business days after the receipt of the Determination Firm’s determination, but in no event later
than December 31 of the year after the year in which Employee remits the Excise Tax to the relevant
taxing authorities. Any determination by the Determination Firm shall be binding upon the Company
and Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Determination 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 be made hereunder. In the
event that Employee thereafter is required to make a payment of any Excise Tax, the Determination
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 Employee, but no later than December
31 of the year after the year in which Employee remits the Excise Tax to the relevant taxing
authorities.
13. No Waiver. No waiver of any term or provision of this Agreement shall be deemed
to be a waiver of any subsequent breach of such term or provision of this Agreement.
14. Applicable Law. This Agreement shall be governed by and construed in accordance
with the law of the State of Florida.
15. Notices. Any notice which may be given, hereunder, shall be sufficient if in
writing and delivered to Employee at 000 Xxxxx Xxxx Xxxx, Xxxxx Xxxxx Xxxxx, XX 00000 and to
Company at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx,
Chairman and Chief Executive Officer, or at such place as either party by written notice
designates. Notices shall be effective upon receipt, unless delivery is refused, in which case
notice shall be effective on the date of such refusal.
16. Heirs And Assigns. This Agreement may be assigned by Company only, and shall be
binding upon the parties hereto, their successors and heirs, wherever the context admits or
requires.
17. Severability Clause. The parties agree that each provision of this Agreement is
severable and the invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity or enforceability of any other provision of this
Agreement, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
18. Inducement or Coercion for Employment. Employee has executed this Agreement
without coercion by Company and pursuant to the advice of Employee’s own independent counsel, and
no representations or inducements of any kind have been made or provided by Company to obtain
Employee’s execution of this Agreement other than those
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specifically contained in this written document.
19. Disputes.
Except as provided in Section 10(h), any dispute relating to or arising
under or in connection with this Agreement shall be submitted to mandatory arbitration in Xxxxx
County, Florida, in accordance with the Commercial Rules of the American Arbitration Association
then in effect, and judgment upon the award rendered pursuant to such arbitration may be entered
in any court of competent jurisdiction. In addition to any damages awarded to Employee by the
arbitrators, Employee shall be entitled to an award of all fees and expenses of arbitration,
including costs and reasonable attorney’s fees. If Employee is entitled to be paid or reimbursed
for any fees and expenses under this Section 19, the amount reimbursable in any one calendar year
shall not affect the amount reimbursable in any other calendar year, and the reimbursement of an
eligible expense must be made no later than December 31 of the year after the year in which the
expense was incurred. Employee’s rights to payment or reimbursement of expenses pursuant to this
Section 19 shall expire at the end of ten (10) years after the date of termination and such rights
shall not be subject to liquidation or exchange for another benefit.
20. Code Section 409A.
(a) This Agreement shall be interpreted and administered in a manner so that any amount or
benefit payable hereunder shall be paid or provided in a manner that is either exempt from or
compliant with the requirements Section 409A of the Code and applicable advice and regulations
issued thereunder.
(b) Notwithstanding anything in this Agreement to the contrary, the severance payments under
Sections 6, 7 and 8, and any other amount or benefit that would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Code and that would otherwise be payable or
distributable hereunder by reason of Employee’s termination of employment, will not be payable or
distributable to Employee unless (i) the circumstances giving rise to such termination of
employment meet any description or definition of “separation from service” in Section 409A of the
Code and applicable regulations (without giving effect to any elective provisions that may be
available under such definition), or (ii) the payment or distribution of such amount or benefit
would be exempt from the application of Section 409A of the Code by reason of the short-term
deferral exemption or otherwise. This provision does not prohibit the vesting of any amount upon
Employee’s termination of employment or the determination of the amounts owed to Employee due to
such termination. If this provision prevents the payment or distribution of any amount or benefit,
such payment or distribution shall be made on the date, if any, on which an event occurs that
constitutes a Section 409A-compliant “separation from service.”
(c) Whenever in this Agreement the provision of payment or benefit is conditioned on
Employee’s execution and non-revocation of a waiver and release of claims, such waiver and release
must be executed, and all revocation periods must have expired, within sixty (60) days after the
date of termination of Employee’s employment, but the Company may elect to commence payment at any
time during such sixty (60)-day period.
(signatures on following page)
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IN WITNESS WHEREOF, the parties, hereto, have executed this Agreement as of the day and year
first above written.
| EVERBANK FINANCIAL CORP | ||||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx
|
Date: | 12-23-08 | |||||
| Chairman and Chief Executive Officer | ||||||||
By:
|
/s/ W. Xxxxx Xxxxxx
|
Date: | 12-23-08 | |||||
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