Exhibit 10.43
SEVERANCE AND NONSOLICITATION
AGREEMENT
THIS AGREEMENT
is made and entered into on this
22nd day of November, 2008, by and between WCI COMMUNITIES, INC.
(“WCI”), a Delaware corporation, and Russell
Devendorf , (the “Employee”).
RECITALS:
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A.
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Employee is a
Senior Vice President and Chief Financial Officer of WCI,
and is an employee of WCI and/or one or more of it
subsidiaries.
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B.
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Employee is not
now a party to any employment agreement with WCI or any of its
subsidiaries.
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C.
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WCI would like
to provide some assurance to Employee that if Employee’s
employment is terminated by WCI without Cause, Employee will
receive certain severance payments.
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NOW, THEREFORE, IN CONSIDERATION of
the recitals and the mutual agreements herein set forth, the
parties agree as follows:
1. Definitions . The
following terms, which are used in this Agreement, are defined as
follows:
a. “Base Salary”
means the amount of Employee’s base salary (without inclusion
of any bonus) in effect immediately prior to
Termination.
b. “Cause” means:
(i) any act of willful misconduct or dishonesty by Employee in
the performance of his duties; (ii) any willful and persistent
failure by Employee to attend to his/her duties; or (iii) any
action by Employee which would constitute a violation of the
provisions of this Agreement under the headings
“Nonsolicitation” and “Confidentiality and
Nondisclosure” if such actions occurred during the
Nonsolicitation Restricted Period; or (iv) Employee’s
conviction of (or pleading guilty or nolo contendere to) any
felony, or of a criminal offense resulting in imprisonment, or of
any misdemeanor involving theft, embezzlement, dishonesty or moral
turpitude.
c. “Company”
means WCI and each of its Subsidiaries.
d. “Good Reason”
means: (i) any material reduction in Employee’s salary
below the level of Base Salary, (ii) any material adverse
change in Employee’s duties, title or responsibilities, or
(iii) the actual physical relocation of Employee’s work
location from WCI Communities, Inc.’s headquarters in Bonita
Springs, Florida to a location outside of the State of Florida;
provided, however, that Good Reason shall not be deemed to have
occurred unless Employee gives WCI thirty (30) days written
notice (“Notice”) of the existence of any such event or
condition described in clause (i), (ii) or (iii) above,
and, within such thirty (30) day period, the Company does not
remedy such event or condition, in which event Good Reason shall be
deemed to have occurred at the time of the giving of such written
notice. Good Reason shall cease to exist for an event or
condition described in clauses (i),
(ii) or (iii) above on the 90th day following its
occurrence, unless Employee has given the Company Notice thereof
prior to such date.
e. “ Nonsolicitation
Restricted Period ” means a period of twelve
(12) months which begins on the date of Termination and ends
twelve (12) months after the date of Termination.
f. “ Severance ”
means a cash payment equal to six (6) months of Base Salary,
payable in a lump sum.
g. “ Subsidiary ”
means each entity (including, without limitation, every
corporation, partnership, limited partnership, limited liability
company, trust and joint venture) in which WCI owns, or has the
right to acquire, directly or indirectly, a controlling
interest.
h. “ Termination
” means the termination of Employee’s employment with
the Company by the Company, other than for Cause, or the
termination of such employment by Employee for Good
Reason.
i. “ WCI ” means
WCI Communities, Inc., and any successors or assigns in connection
with any restructuring of WCI Communities, Inc.
2. Severance
a. Basis for Payment . If
Employee’s employment is terminated by Company, other than
for Cause, or if Employee terminates his/her employment with the
Company for Good Reason, Employee will be entitled to receive
Severance.
b. Payment of Severance .
Provided proper Notice has been given under Section 1
(d) above, Severance will be paid by WCI in one lump sum
payment within forty (40) days after the date of
Termination.
3. Effect of Death or
Disability .
a. During Employment . All of
the obligations of WCI hereunder, including the obligation of WCI
to pay Severance, will terminate upon a termination of employment
as a result of death or disability.
4. Nonsolicitation . During
the Nonsolicitation Restricted Period, Employee shall not solicit
any person who was an employee of or consultant to the Company at
any time within three (3) months prior to Termination to
accept employment with Employee, with Employee’s new
employer, or with any other person or entity, or encourage any
person to terminate his/her employment or consultant relationship
with the Company, or assist any person or entity, including
Employee’s new employer, in identifying employees of or
consultants to the Company to solicit for employment or consulting
relationships, or in any way assist any person or entity, including
Employee’s new employer, in solicitation of any employee of
or consultant to the Company, nor except with the prior written
consent of WCI, shall Employee hire, or cause or permit any entity
controlled directly or indirectly by Employee to hire, any person
as an
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employee or consultant who was, at any time
within three (3) months prior to Termination, an employee of
the Company.
5. Confidentiality and
Nondisclosure . Employee agrees that he/she shall not use or
disclose to third parties any confidential information of the
Company. All files, records, documents, data and similar items
relating to the Company, as well as all copies thereof, whether
prepared by Employee or otherwise coming into his/her possession,
shall remain the exclusive property of the Company and shall
immediately be returned to the Company upon termination of
Employee’s employment. Employee’s obligations under
this section shall continue while he/she is an employee of the
Company, and after termination of the employment so long as the
Company derives value from such confidential information remaining
confidential.
6. Release . As a condition
to the payment of Severance, Employee will execute a complete
release in the form of Exhibit A.
7. Restrictions Reasonable .
Employee acknowledges that the restrictions under the sections
headed “Nonsolicitation” and “Confidentiality and
Nondisclosure” are reasonable and necessary to protect the
legitimate interests of WCI and do not cause Employee undue
hardship.
8. Equitable Relief .
Employee hereby acknowledges and agrees that the Company and its
goodwill would be irreparably injured by, and that damages at law
are an insufficient remedy for, a breach or violation of the
provisions of this Agreement, and agrees that the Company, in
addition to other remedies available to it for such breach, shall
be entitled to a preliminary injunction, temporary restraining
order, or other equivalent relief, restraining Employee from any
actual breach of the provisions hereof, and that WCI’s rights
to such equitable relief shall be cumulative and in addition to any
other rights or remedies to which WCI may be entitled.
9. Fiduciary Obligations of
Employee; Other Rights of the Company . The provisions of this
Agreement, are not intended to limit the fiduciary and other
obligations of the Employee, if any, to the Company under
applicable law, and in no event shall this Agreement, be
interpreted to release or limit any of Employee’s obligations
to the Company provided by law.
10. Notices . Any notice,
request, instruction, or other document to be given hereunder shall
be in writing and shall be deemed to have been given: (a) on
the day of receipt, if sent by overnight courier; (b) upon
receipt, if given in person; (c) five days after being
deposited in the mail, certified or registered mail, postage
prepaid, and in any case addressed as follows:
If to WCI:
Senior Vice President
Human Resources
Department
24301 Walden Center Dr.
Bonita Springs, FL 34134
If to the Employee:
Russell Devendorf
3210 Birch Terrace
David, FL 3330
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or to such other address or to the attention of
such ot
