AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.25
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is made by and between EVERBANK FINANCIAL CORP
(“Company”), a Florida corporation, and XXXXXXX X. 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 Executive Vice President and Director of Operations. 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 President and Chief Financial Officer of the Company (the
“EverBank
President”). 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
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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 sixty
percent (60%) 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 President;
(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. 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 preceeding his termination (collectively, the “Cash Severance
Payments”). The Cash Severance Payments shall be payable in equal installments over a twelve
(12) month period (the “Severance Payment Period”), per the normal payroll practices of the
Company, less applicable payroll deductions. 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 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
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.
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(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 (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. 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. 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) herein; provided however that the general release of claims shall not include a
release
of 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.
(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 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
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employees, including but not limited to termination of the group health plans sponsored by
Company; (B) the Company shall pay 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 (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
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.
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“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, 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
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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 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.
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(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 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. 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”)
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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. 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 Change in Control Agreement entered into by and between Alliance Mortgage Company and
the Employee as of October 21, 1997. 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.
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.
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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 0000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000,
and
to the Company at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: W. Xxxxx
Xxxxxx, President and Chief Financial 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
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
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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.
By:
|
/s/ Xxxxxx X. Xxxxxxxx | Date: 12-23-08 | ||||
| Xxxxxx X. Xxxxxxxx | ||||||
| Chairman and Chief Executive Officer | ||||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | Date: 12-23-08 | ||||
| Xxxxxxx X. Xxxxxx |
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