AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is made by and between EVERBANK
FINANCIAL CORP (“Company”), a Florida corporation, and XXXX X. XXXXX (“Employee”), a
resident of the State of Florida, as of October 31, 2008 (the “Effective Date”), as
amended and restated as of December 31, 2008.
Recitals
A. Company is engaged in the business of providing financial products and services.
B. Employee
and Company entered into an Employment Agreement dated as of January 1, 2002 (the
“First Employment Agreement”);
C. Employee and Company entered into a First Amendment to the First Employment Agreement dated
as of May 20, 2004 (the “First Amendment”).
D. Employee and Company entered into an Amended and Restated Employment Agreement dated as of
January 1, 2006 (the “Second Employment Agreement”), the terms of which superseded the
terms of the First Employment Agreement, as amended by the First Amendment.
E. Employee and Company entered into a Second Amendment to the Second Employment Agreement
(the “Second Amendment”).
F. Employee and Company entered into an amended and restated employment agreement dated as of
October 31, 2008 (the “Third Employment Agreement”), the terms of which superseded the terms of the
Second Employment Agreement, as amended by the Second Amendment.
G. Employee and Company desire to enter into a new employment agreement that supersedes and
replaces the provisions of the First Employment Agreement, as amended, and the Second Employment
Agreement, as amended, and the Third Employment Agreement, and provides Employee with certain
rights and benefits during the continuing term of his employment with Company and in the event of
termination of his employment with the Company.
H. 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 Vice-Chairman. 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 such time as is necessary to perform the duties reasonably requested
by the Board; provided, however, that the parties acknowledge and agree that Employee shall be
required
to provide such efforts on a less than full time basis, as is more specifically provided for
in this paragraph. In performing the duties hereunder, Employee shall make himself available to
Company in such a manner that in any given calendar year, the aggregate amount of time that
Employee has devoted to providing service hereunder is at least three-quarters of the time that
would be considered to be full time under the Company’s policies and practices in effect as of the
date hereof.
3. Term. The term of employment hereunder shall begin on the Effective Date and
continue until terminated hereunder. The term of employment hereunder 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; provided, however, that in no event
shall the Base Salary be decreased as a result of such review of such 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 one hundred percent
(100%) of his Base Salary, consistent with “stretch target amounts” assigned in prior years;
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.
(e) Put Rights.
(i) In the event of termination of this Agreement by Employee for any
reason or by Employer without “Cause,” as defined in
Section 5 of this Agreement (and not as defined in the Shareholder Agreement, as defined below, or as defined in any other agreement or document to which Employee is a party), Employee: (x) shall have the “put” rights contained in Section 8 of the Amended and Restated Stock Redemption and Shareholders Agreement dated as of July 21, 2008, by and among Company, Employee and those additional persons signing such agreement as shareholders (the “Shareholder Agreement”) as though Employee was terminated by “the Employer other than for Cause” as provided therein; and (y) may exercise such “put” rights beginning on the termination date. Employee may exercise his post-termination put rights with respect to any or all of Employee’s shares
Section 5 of this Agreement (and not as defined in the Shareholder Agreement, as defined below, or as defined in any other agreement or document to which Employee is a party), Employee: (x) shall have the “put” rights contained in Section 8 of the Amended and Restated Stock Redemption and Shareholders Agreement dated as of July 21, 2008, by and among Company, Employee and those additional persons signing such agreement as shareholders (the “Shareholder Agreement”) as though Employee was terminated by “the Employer other than for Cause” as provided therein; and (y) may exercise such “put” rights beginning on the termination date. Employee may exercise his post-termination put rights with respect to any or all of Employee’s shares
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in one transaction. The parties acknowledge that to the extent that the Employee has transferred
his equity interests in Company to a Permitted Transferee (as defined in the Shareholder
Agreement), the “put” rights referenced in the Agreement shall continue to apply and the Permitted
Transferee will have the “put” rights as if the Employee was still the record owner of such equity
interests.
Unless the Parties otherwise agree in writing, in the event that a sale of
Company (whether by means of a stock sale, a merger, a sale of all or substantially all of
Company’s assets or of EverBank’ assets or any other business combination) or a public offering
(whether an initial public offering or otherwise) by Company (either directly or indirectly) is
under Active Consideration by the Board or the management of Company, as determined by the Board in
good faith, on or after the termination date of this Agreement, Company’s call rights and
Employee’s “put” rights contained in Sections 8 and 9 of the Shareholder Agreement shall, at the
option of Company, be postponed until (A) two (2) months following the closing of any such sale of
Company or public offering by Company and subject to any restrictions imposed by the buyer,
underwriter, or any regulator for such sale of Company or public offering by Company, or (B) the
Board furnishes Employee with written notice, acting in good faith, that any such transaction is no
longer under Active Consideration (the period covered by (A) and (B) is the “Hold Period”).
Company shall provide written notice to Employee of Company’s election to trigger a Hold Period and
such notice shall include the commencement date of the Hold Period. If Company terminates this
Agreement other than for Cause and, on or after the termination date of employment, triggers a Hold
Period, Employee shall have the option to extend the term of this Agreement for the Hold Period and
the term of this Agreement shall be so extended and shall terminate automatically on the close of
business on the last day of the Hold Period. The Hold Period shall not exceed six (6) months
without the written consent of Employee; provided, that if Company, pursuant to an agreement,
applicable law or otherwise, is prohibited from satisfying its obligations under this Section
4(e)(i) at the end of a six-month Hold Period, the Hold Period shall be automatically extended
(with or without the written consent of Employee) until such time as Company is so permitted to
satisfy its obligations under this Section
4(e)(i); provided, further, that if the Hold Period is
automatically extended, Company shall use its commercially reasonable efforts to limit the length
of such automatically extended Hold Period.
For purposes of this Agreement, “Active Consideration” shall mean (A) in the
case of a sale of Company, the earlier to occur of the execution of a letter of intent (whether
binding or non-binding) by Company or the execution of an engagement letter (or similar agreement)
with a financial advisor by Company; and (B) in the case of a public offering by Company, the
engagement (whether by written agreement or otherwise) by Company of one or more investment
banking firms.
(f) Call Rights. Upon termination of this Agreement for any reason, the call rights
(if any) the Company has shall be determined under the Shareholder Agreement (but shall use the
definition of “Cause” as provided for in this Agreement; provided, however, the Call Price under
the Shareholder Agreement shall in all cases be the Determined Value and shall in no event be
based on “the cost to the management investor” as otherwise referenced in the Shareholder
Agreement.
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
shall not be entitled to Employee’s “put” rights under
Section 8 of the Shareholder Agreement.
Notwithstanding any other agreement or document to which Employee is a party, 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
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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), that is not remedied
within thirty (30) days after written notice such breach 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) Willful Misconduct. A violation by Employee in the course of performing Employee’s
duties to Company of any law, rule, regulation (other than traffic violations or other minor
offenses) where such violation has resulted or is likely to result in material harm to Company and
constituted an act or mission performed or made willfully, in bad faith and without a reasonable
belief that such act or misconduct was within the scope of Employee’s employment hereunder; 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.
6. Termination_by Employee For Any Reason; Termination by Company Without
Cause.
(a) In General. Unless Employee has elected to extend the term of this
Agreement during the Hold Period, Employee may terminate this Agreement at any time and for any
reason upon thirty (30) days’ prior written notice to Company and Company may terminate this
Agreement without Cause at any time upon thirty (30) days’ prior written notice to Employee.
(b) Rights and Obligations Upon Termination by Employee. In the event of such termination: (1)
Employee’s “put” rights under Section 8 of the Shareholder Agreement shall be exercisable beginning
on the termination date; and (2) Employee shall be entitled to the following severance benefits and
rights.
(i) Payment. Company shall pay Employee an amount equal to his annual
Base Salary in effect immediately preceding his termination, plus the Employee’s target bonus in
effect immediately preceding his termination and any unpaid bonus for any prior years, less
applicable payroll deductions (collectively, the “Bonus Payment”). As set forth above, Employee’s
target bonus in effect as of the date hereof is 100% of the “stretch goal,” as defined in the
incentive bonus plan in effect as of the date hereof. If actual results for the plan year in which
the Termination Date occurs exceed such target bonus, Company shall pay to Employee within ninety
(90) days following the end of the plan year, the amount by which such pro-rated Bonus Payment
calculated using actual results exceeds the amount paid to Employee using target incentive bonus
compensation, less applicable payroll deductions. The Base Salary and the Bonus Payment shall be
referred to collectively herein as the “Cash Severance Payments”. The Base Salary shall be payable
in equal installments over a twelve (12) month period, per the normal payroll practices of the
Company, less applicable payroll deductions, and the Bonus Payment shall be paid within forty-five
(45) days after the Date of Termination. Each such payment shall be treated as a separate payment
for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). The
Cash Severance Payments will be made only if Employee complies with the terms of Sections 8 (Duties
Upon Termination) and 9 (Restrictive Covenants) and signs a valid general release of
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claims against the Company and any of its agents or principals, a copy of which is attached hereto
as Exhibit A.
(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 twelve (12) months; 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) 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 twelve (12) month period 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 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, a copy of which is attached hereto as Exhibit A, and comply with the terms of
Sections 8 (Duties Upon Termination) and 9 (Restrictive Covenants).
(c) All options to purchase equity interests of Company or its Affiliates held by Employee
that are unvested on the Date of Termination shall expire on such date except for those that would
otherwise vest no later than 45 days after the Date of Termination (the “45 Day Options”).
The 45 Day Options shall vest on the Date of Termination.
7. 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 termination of employment by reason of his
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 amounts set forth in Section 6(b)(i). Such payment shall be made at the time the
payment would have been made absent death or disability. In addition, in the event of termination
by disability, Employee shall be entitled to the Health Coverage for one (1) year after termination
on the terms provided in Section 6(b)(ii).
8. 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.
9. Restrictive Covenants.
(a) Acknowledgements. Subject to the limitations of reasonableness imposed by
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law,
Employee shall be subject to the restrictions set forth in this
Section 9.
(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 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 one (1) year from the termination of such employment for any reason whatsoever.
“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,
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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.
(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 9(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
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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 ten (10) 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; provided,
however, that any unintentional failure to return such property within such ten (10)-day
period shall not be deemed to be a breach of this Agreement if Employee returns any such property
to the Company promptly after Employee discovers such failure or after Company discovers such
failure and provides Employee with written notice thereof. 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 9 (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 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 9.
(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.
10. 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 First
Employment Agreement, the First Amendment, the Second Employment Agreement, the Second
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Amendment and the Third Employment Agreement entered into by and between the Company and Employee,
all as described in the Preamble hereto. Notwithstanding the forgoing, 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.
11. Limitation of Benefits.
(a) Notwithstanding anything in this Agreement to the contrary, in the event it shall be
determined that any benefit, payment or distribution by the Company to or for the benefit of
Employee (whether payable or distributable pursuant to the terms of this Agreement or otherwise)
(such benefits, payments or distributions are hereinafter referred to as “Payments”) would, if
paid, be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, then the
aggregate present value of the Payments shall be reduced (but not below zero) to an amount
expressed in present value that maximizes the aggregate present value of the Payments without
causing the Payments or any part thereof to be subject to the Excise Tax and therefore
nondeductible by the Company because of Section 280G of the Code (the “Reduced Amount”). For
purposes of this Section 11, present value shall be determined in accordance with Section
280G(d)(4) of the Code. The reduction of the Payments due hereunder, if applicable, shall be made
in such a manner as to maximize the economic present value of all Payments actually made to
Employee, determined by the Determination Firm (as defined in Section 11(b) below) as of the date
of the applicable change in control using the discount rate required by Section 280G(d)(4) of the
Code.
(b) All determinations required to be made under this Section 11, including whether an Excise
Tax would otherwise be imposed, whether the Payments shall be reduced, the amount of the Reduced
Amount, and the assumptions to be utilized in arriving at such determinations, 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 15 business days of the receipt of
notice from Employee that a Payment is due to be made, or such earlier time as is requested by the
Company. All fees and expenses of the Determination Firm shall be borne solely by the Company. 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 Payments hereunder will have
been unnecessarily limited by this Section 11 (“Underpayment”), consistent with the calculations
required to be made hereunder. 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 together with interest at the applicable Federal rate provided for
in Section 7872(f)(2) of the Code, but no later than December 31 of the year after the year in
which the Underpayment is determined to exist.
(c) In the event that the provisions of Code Section 280G and 4999 or any successor provisions
are repealed without succession, this Section 11 shall be of no further force or effect.
12. 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.
13 Applicable Law. This Agreement shall be governed by and construed in
accordance
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with the law of the State of Florida.
14. Notices. Any notice which may be given, hereunder, shall be sufficient if in
writing and delivered to Employee at 00000 Xxxxxxx Xxxx Xxxxx, Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000,
and to the 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.
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.
15. Heirs And Assigns. Except as provided below, 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. Notwithstanding the foregoing, any and all of Employee’s rights and
benefits hereunder shall be assigned to and may be exercised by Employee’s designated beneficiary
or estate upon the death of Employee.
16. 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.
17. 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 specifically contained in this written
document.
18. Disputes. Except as provided in Section 9(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 18, 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 18 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.
19. 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 and 7 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
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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 a
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.
(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: December 29, 2008 | ||||
| Xxxxxx X. Xxxxxxxx | ||||||
| Chairman and Chief Executive Officer | ||||||
By:
|
/s/ Xxxx X. Xxxxx | Date: December 31, 2008 | ||||
| Xxxx X. Xxxxx | ||||||
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Exhibit A
Form of Release
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RELEASE
In exchange for a portion of the benefits described in the attached Employment Agreement
dated as of [•] (the “Employment Agreement”), to which I agree I am not otherwise
entitled, I hereby release EverBank Financial Corp (the “Company”), its respective
affiliates, subsidiaries, predecessors, successors, assigns, officers, directors, employees,
agents, stockholders, attorneys, and insurers, past, present and future (the “Released
Parties”) from any and all claims of any kind which I now have or may have against the
Released Parties, whether known or unknown to me, by reason of facts which have occurred on or
prior to the date that I have signed this Release; provided, however, that such
released claims shall not include any claims to enforce my rights (i) under, or with respect to,
the Employment Agreement, (ii) to indemnification provided at law or pursuant to the Company’s
By-Laws or insurance or to directors’ and officers’ liability or employment practices insurance
coverage, (iii) under COBRA or my rights under benefit or incentive plans; or (iv) as a
stockholder, including, but not limited to, any of my rights under or with respect to the
Company’s Amended and Restated Stock Redemption ad Shareholders Agreement dated as of July 21,
2008, as such agreement my be further amended from time to time (collectively, the Retained
Claim Rights”). Notwithstanding the generality of the preceding sentence, such released claims
include, without limitation, any and all claims under federal, state or local laws pertaining to
employment, including the Age Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. Section 2000e et seq., the Fair Labor Standards Act, as
amended, 29 U.S.C. Section 201 et seq., the Americans with Disabilities Act, as amended,
42 U.S.C. Section 12101 et seq., the Reconstruction Era Civil Rights Act, as amended, 42
U.S.C. Section 1981 et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section
701 et seq., the Family and Medical Leave Act of 1992, 29 U.S.C. Section 2601 et
seq., and any and all state or local laws regarding employment discrimination and/or federal,
state or local laws of any type or description regarding employment, including, but not limited
to, any claims arising from or derivative of my employment with the Company, as well as any and
all claims under state contract or tort law or otherwise.
I hereby represent that I have not filed any action, complaint, charge, grievance or
arbitration (collectively, an “Action”) against the Company or the Released Parties [if
applicable, add any carve out for current action relating to a Retained Claim Right here], it being
understood that nothing in this sentence shall be construed as affecting my right to file any
Action at any time relating to or arising out of a Retained Claim Right.
I understand and agree that I must comply with my duties upon termination and the restrictive
covenants as set forth in the Employment Agreement. I agree that any violation or breach by me of
any of such provisions, without limiting the Company’s remedies, shall give rise on the part of
the Company to a claim for relief to recover from me, before a court of competent jurisdiction,
any and all amounts previously paid to or on behalf of me by the Company that are conditioned
under the Agreement upon the signing of the Release, but shall not release me from the performance
of my obligations under this Release.
I expressly understand and agree that the Company’s obligations under this Release, under the
Employment Agreement, and in connection with the Retained Claim Rights are in lieu of any and all
other amounts to which I might be, am now or may become entitled to receive from any of the
Released Parties upon any claim whatsoever.
I will not apply for or otherwise seek employment with the Released Parties without their
written consent.
I have read this Release carefully, acknowledge that I have been given at least 21 days to
consider all of its terms, and have been advised to consult with an attorney and any other
advisors of my choice
prior to executing this Release, and I fully understand that by signing below I am
voluntarily giving up any right which I may have to xxx or bring any other Actions against the
Released Parties other than with respect to a Retained Claim Right, including any rights and claims
under the Age Discrimination in Employment Act. I also understand that I have a period of 7 days
after signing this Release within which to revoke my agreement, and that neither the Company nor
any other person is obligated to provide any benefits to me pursuant to the Employment Agreement
until 8 days have passed since my signing of this Release without my signature having been revoked.
I understand that any revocation of this Release must be received by the General Counsel of the
Company within the seven-day revocation period. Finally, I have not been forced or pressured in any
manner whatsoever to sign this Release, and I agree to all of its terms voluntarily. I represent
and acknowledge that no representation, statement, promise, inducement, threat or suggestion has
been made by any of the Released Parties or by any other individual to influence me to sign this
Release, except such statements as are expressly set forth herein or in the Agreement.
This Release is final and binding and may not be changed or modified.
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