Exhibit 10.22


 


CHANGE IN CONTROL SEVERANCE AGREEMENT


 


THIS
AGREEMENT is entered into as of this 12th day of February 2008, by and between
Gevity HR, Inc., a Florida corporation (the “Company”), and Edwin E.
Hightower, Jr. (“Executive”).


 


W I T N E
S S E T H


 


WHEREAS,
the Company considers the establishment and maintenance of a sound and vital
management to be essential to protecting and enhancing the best interests of
the Company and its stockholders; and


 


WHEREAS,
the Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may arise and that such
possibility may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders; and


 


WHEREAS,
the Board (as defined in Section 1) has determined that it is in the best
interests of the Company and its stockholders to secure Executive’s continued
services and to ensure Executive’s continued dedication to his duties in the
event of any threat or occurrence of a Change in Control (as defined in Section 1)
of the Company; and


 


WHEREAS,
the Board has authorized the Company to enter into this Agreement.


 


NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
and agreements herein contained, the Company and Executive hereby agree as
follows:


 


1.             Definitions.  As used in this Agreement, the following
terms shall have the respective meanings set forth below:


 


(a)           “Board”
means the Board of Directors of the Company.


 


(b)           “Bonus
Amount” means the greater of (i) the average annual incentive bonus earned
by Executive from the Company (or its affiliates) during the last three (3) completed
fiscal years of the Company immediately preceding Executive’s Date of
Termination (annualized in the event Executive was not employed by the Company
(or its affiliates) for the whole of any such fiscal year), and (ii) the
Executive’s target annual incentive bonus for the year in which the Date of
Termination occurs.


 


(c)           “Cause”
means (i) the willful and continued failure of Executive to perform
substantially his duties with the Company (other than any such failure
resulting from Executive’s incapacity due to physical or mental illness or any
such failure subsequent to Executive being delivered a Notice of Termination
without Cause by the Company or delivering a Notice of Termination for Good
Reason to the Company) after a written demand for substantial


 

















 


performance is
delivered to Executive by the Board which specifically identifies the manner in
which the Board believes that Executive has not substantially performed
Executive’s duties, or (ii) the willful engaging by Executive in illegal
conduct or gross misconduct which is demonstrably and materially injurious to
the Company or its affiliates.  For
purpose of this paragraph (c), no act or failure to act by Executive shall
be considered “willful”, unless done or omitted to be done by Executive in bad
faith and without reasonable belief that Executive’s action or omission was in
the best interests of the Company or its affiliates.  Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board, based upon
the advice of counsel for the Company or upon the instructions of the Company’s
chief executive officer or another senior officer of the Company shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. 
Cause shall not exist unless and until the Company has delivered to
Executive a copy of a resolution duly adopted by three-quarters (3/4) of the
entire Board (excluding Executive if Executive is a Board member) at a meeting
of the Board called and held for such purpose (after reasonable notice to
Executive and an opportunity for Executive, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board an event
set forth in clauses (i) or (ii) has occurred and specifying the
particulars thereof in detail.


 


(d)           “Change
in Control” means the occurrence of any one of the following events:


 


(i)            individuals who, on
the date hereof, constitute the Board (the “Incumbent Directors”) cease for any
reason to constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the date hereof, whose election or nomination
for election was approved by a vote of at least two-thirds of the Incumbent
Directors then on the Board (either by a specific vote or by approval of the
proxy statement of the Company in which such person is named as a nominee for
director, without written objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected or nominated
as a director of the Company as a result of an actual or threatened election
contest with respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on behalf of any person
other than the Board shall be deemed to be an Incumbent Director;


 


(ii)           any “person” (as such
term is defined in Section 3(a)(9) of the Securities Exchange Act of
1934 (the “Exchange Act”) and as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company’s then
outstanding securities eligible to vote for the election of the Board (the “Company
Voting Securities”); provided, however, that the event described in this
paragraph (ii) shall not be deemed to be a Change in Control by
virtue of any of the following acquisitions: 
(A) by the Company or any Subsidiary, (B) by any employee
benefit plan (or related trust) sponsored or maintained by the Company or any
Subsidiary, (C) by any underwriter temporarily holding securities pursuant
to an offering of such securities, (D) pursuant to a 


 


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Non-Qualifying Transaction (as defined in
paragraph (iii)), or (E) unless otherwise approved by the Board,
pursuant to any acquisition by Executive or any group of persons including
Executive (or any entity controlled by Executive or any group of persons
including Executive);


 


(iii)          the consummation of a
merger, consolidation, statutory share exchange or similar form of corporate
transaction involving the Company or any of its Subsidiaries that requires the
approval of the Company’s stockholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless
immediately following such Business Combination:  (A) more than 50% of the total voting
power of (x) the corporation resulting from such Business Combination (the
“Surviving Corporation”), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial ownership of 100% of the
voting securities eligible to elect directors of the Surviving Corporation (the
“Parent Corporation”), is represented by Company Voting Securities that were
outstanding immediately prior to such Business Combination (or, if applicable,
is represented by shares into which such Company Voting Securities were
converted pursuant to such Business Combination), and such voting power among
the holders thereof is in substantially the same proportion as the voting power
of such Company Voting Securities among the holders thereof immediately prior
to the Business Combination, (B) no person (other than any employee
benefit plan (or related trust) sponsored or maintained by the Surviving
Corporation or the Parent Corporation), is or becomes the beneficial owner,
directly or indirectly, of 25% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation)
and (C) at least a majority of the members of the board of directors of
the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors at the time of the Board’s approval of the execution of the
initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A), (B) and (C) above
shall be deemed to be a “Non-Qualifying Transaction”); or


 


(iv)          the stockholders of the
Company approve a plan of complete liquidation or dissolution of the Company or
a sale of all or substantially all of the Company’s assets.


 


Notwithstanding the foregoing, a Change in Control of
the Company shall not be deemed to occur solely because any person acquires
beneficial ownership of more than 25% of the Company Voting Securities as a
result of the acquisition of Company Voting Securities by the Company which reduces
the number of Company Voting Securities outstanding; provided that, if after
such acquisition by the Company such person becomes the beneficial owner of
additional Company Voting Securities that increases the percentage of
outstanding Company Voting Securities beneficially owned by such person, a
Change in Control of the Company shall then occur.


 


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(e)           “Date
of Termination” means (1) the effective date on which Executive’s
employment by the Company terminates as specified in a prior written notice by
the Company or Executive, as the case may be, to the other, delivered pursuant
to Section 10 or (2) if Executive’s employment by the Company
terminates by reason of death, the date of death of Executive.


 


(f)            “Disability”
means termination of Executive’s employment by the Company due to Executive’s
absence from Executive’s duties with the Company on a full-time basis for at
least one hundred eighty (180) consecutive days as a result of Executive’s
incapacity due to physical or mental illness.


 


(g)           “Good
Reason” means, without Executive’s express written consent, the occurrence of
any of the following events after a Change in Control:


 


(i)            (A) any change in
the duties or responsibilities (including reporting responsibilities) of
Executive that is inconsistent in any material and adverse respect with
Executive’s position(s), duties, responsibilities or status with the Company
immediately prior to such Change in Control (including any material and adverse
diminution of such duties or responsibilities) or (B) a material and
adverse change in Executive’s titles or offices (including, if applicable,
membership on the Board) with the Company as in effect immediately prior to
such Change in Control;


 


(ii)           a reduction by the
Company in Executive’s rate of annual base salary or annual target bonus
opportunity (including any material and adverse change in the formula for such
annual bonus target) as in effect immediately prior to such Change in Control
or as the same may be increased from time to time thereafter;


 


(iii)          any requirement of the
Company that Executive (A) be based anywhere more than fifty (50) miles
from the office where Executive is located at the time of the Change in Control
or (B) travel on Company business to an extent substantially greater than
the travel obligations of Executive immediately prior to such Change in
Control;


 


(iv)          the failure of the
Company to (A) continue in effect any employee benefit plan, compensation
plan, welfare benefit plan or material fringe benefit plan in which Executive
is participating immediately prior to such Change in Control or the taking of
any action by the Company which would adversely affect Executive’s
participation in or reduce Executive’s benefits under any such plan, unless
Executive is permitted to participate in other plans providing Executive with
substantially equivalent benefits in the aggregate (at substantially equivalent
cost with respect to welfare benefit plans), or (B) provide Executive with
paid vacation in accordance with the most favorable vacation policies of the
Company (and its affiliated companies) as in effect for Executive immediately
prior to such Change in Control, including the crediting of all service for
which Executive had been credited under such vacation policies prior to the
Change in Control;


 


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(v)           any purported
termination of Executive’s employment which is not effectuated pursuant to Section 10(b) (and
which will not constitute a termination hereunder); or


 


(vi)          the failure of the
Company to obtain the assumption agreement from any successor as contemplated
in Section 9(b).


 


An isolated, insubstantial and inadvertent action
taken in good faith and which is remedied by the Company within ten (10) days
after receipt of notice thereof given by Executive shall not constitute Good
Reason.  Executive’s right to terminate
employment for Good Reason shall not be affected by Executive’s incapacities
due to mental or physical illness and Executive’s continued employment shall
not constitute consent to, or a waiver of rights with respect to, any event or
condition constituting Good Reason; provided, however, that Executive must
provide notice of termination of employment within ninety (90) days following
Executive’s knowledge of an event constituting Good Reason or such event shall
not constitute Good Reason under this Agreement.


 


(h)           “Qualifying
Termination” means a termination of Executive’s employment (i) by the
Company other than for Cause or (ii) by Executive for Good Reason.  Termination of Executive’s employment on
account of death, Disability or Retirement shall not be treated as a Qualifying
Termination.


 


(i)            “Retirement”
means Executive’s mandatory retirement (not including any mandatory early
retirement) in accordance with the Company’s retirement policy generally
applicable to its salaried employees, as in effect immediately prior to the
Change in Control, or in accordance with any retirement arrangement established
with respect to Executive with Executive’s written consent.


 


(j)            “Subsidiary”
means any corporation or other entity in which the Company has a direct or
indirect ownership interest of 50% or more of the total combined voting power
of the then outstanding securities or interests of such corporation or other
entity entitled to vote generally in the election of directors or in which the
Company has the right to receive 50% or more of the distribution of profits or
50% of the assets or liquidation or dissolution.


 


(k)           “Termination
Period” means the period of time beginning with a Change in Control and ending
two (2) years following such Change in Control.  Notwithstanding anything in this Agreement to
the contrary, if (i) Executive’s employment is terminated prior to a
Change in Control for reasons that would have constituted a Qualifying
Termination if they had occurred following a Change in Control; (ii) Executive
reasonably demonstrates that such termination (or Good Reason event) was at the
request of a third party who had indicated an intention or taken steps
reasonably calculated to effect a Change in Control; and (iii) a Change in
Control involving such third party (or a party competing with such third party
to effectuate a Change in Control) does occur, then for purposes of this Agreement,
the date immediately prior to the date of such termination of employment or
event constituting Good Reason shall be treated as a Change in 


 


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Control.  For purposes of determining the timing of payments
and benefits to Executive under Section 4, the date of the actual Change
in Control shall be treated as Executive’s Date of Termination under Section 1(e).


 


2.             Obligation of
Executive.  In the event of a tender
or exchange offer, proxy contest, or the execution of any agreement which, if
consummated, would constitute a Change in Control, Executive agrees not to
voluntarily leave the employ of the Company, other than as a result of
Disability or an event which would constitute Good Reason if a Change in
Control had occurred, until the Change in Control occurs or, if earlier, such
tender or exchange offer, proxy contest, or agreement is terminated or
abandoned.


 


3.             Term of Agreement.  This Agreement shall be effective on the date
hereof and shall continue in effect until the Company shall have given three (3) years’
written notice of cancellation; provided that, notwithstanding the delivery of
any such notice, this Agreement shall continue in effect for a period of two (2) years
after a Change in Control, if such Change in Control shall have occurred during
the term of this Agreement. 
Notwithstanding anything in this Section to the contrary, this
Agreement shall terminate if Executive or the Company terminates Executive’s
employment prior to a Change in Control except as provided in Section l(k).


 


4.             Payments Upon
Termination of Employment.


 


(a)           Qualifying
Termination.  If during the
Termination Period the employment of Executive shall terminate pursuant to a
Qualifying Termination, then the Company shall provide to Executive:


 


(i)            within five (5) days
following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s
base salary through the Date of Termination and any bonus amounts which have
become payable, to the extent no theretofore paid or deferred, and (B) any
accrued vacation pay, to the extent not theretofore paid; plus


 


(ii)           on the first business
day which is six (6) months and one (1) day after Executive separates
from service (within the meaning of Section 409A of the Internal Revenue
Code (“Code”)), a lump sum cash amount equal to a pro rata portion of Executive’s
annual bonus for the fiscal year in which Executive’s Date of Termination
occurs, which portion shall at least be equal to (A) Executive’s Bonus
Amount, multiplied by (B) a fraction, the numerator of which is the number
of days in the fiscal year in which the Date of Termination occurs through the
Date of Termination and the denominator of which is three hundred sixty-five
(365), and reduced by (C) any amounts paid from the Company’s annual
incentive plan for the fiscal year in which Executive’s Date of Termination
occurs; plus


 


(iii)          on the first business
day which is six (6) months and one (1) day after Executive separates
from service (within the meaning of Section 409A of the Code, a lump-sum
cash amount equal to (A) two (2) times Executive’s highest annual
rate of base 


 


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salary during the 12-month period immediately prior to
Executive’s Date of Termination, plus (B) two (2) times Executive’s
Bonus Amount.


 


(iv)          in addition to the
payments set forth in Sections 4 (a)(i), (ii) and (iii) as well as Section 5,
any stock incentives (as defined in the stock incentive plans maintained by the
Company) that have been awarded to Executive under the terms of the stock
incentive plans maintained by the Company shall fully vest upon the occurrence
of a Change in Control, as such term is defined in Section 1(d) with
50% substituted for 25% in Section 1(d)(ii) (whether or not a
Qualifying Termination has occurred) and all other terms and conditions of any
such stock incentive award shall remain in effect to the extent not
inconsistent with the provisions of this Section 4(a)(iv).


 


(b)           If
during the Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, the Company shall continue to provide,
for a period of two (2) years following Executive’s Date of Termination,
Executive (and Executive’s dependents, if applicable) with the same level of
medical, dental, accident, disability and term life insurance benefits upon
substantially the same terms and conditions (including contributions required
by Executive for such benefits) as existed immediately prior to Executive’s
Date of Termination (or, if more favorable to Executive, as such benefits and
terms and conditions existed immediately prior to the Change in Control);
provided that, if Executive cannot continue to participate in the Company plans
providing such benefits, the Company shall otherwise provide such benefits on
the same after-tax basis as if continued participation had been permitted.  Notwithstanding the foregoing, in the event
Executive becomes reemployed with another employer and becomes eligible to
receive welfare benefits from such employer, the welfare benefits described
herein shall be secondary to such benefits during the period of Executive’s
eligibility, but only to the extent that the Company reimburses Executive for
any increased cost and provides any additional benefits necessary to give
Executive the benefits provided hereunder. 
Any medical or dental coverage provided under this Section 4(b) shall
be in addition to any rights Executive has under Part 6 of Title 1 of
ERISA.


 


(c)           If
during the Termination Period the employment of Executive shall terminate other
than by reason of a Qualifying Termination, then the Company shall pay to
Executive within thirty (30) days following the Date of Termination, a
lump-sum cash amount equal to the sum of (1) Executive’s base salary
through the Date of Termination and any bonus amounts which have become
payable, to the extent not theretofore paid or deferred, and (2) any
accrued vacation pay, in each case to the extent not theretofore paid.  The Company may make such additional payments,
and provide such additional benefits, to Executive as the Company and Executive
may agree in writing.


 


5.             Certain Additional
Payments by the Company.


 


(a)           Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (or any
acceleration of any payment, award, benefit or distribution) by the Company (or
any of its affiliated entities) or any 


 


7

















 


entity which
effectuates a Change in Control (or any of its affiliated entities) to or for
the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 5) (the “Payments”) would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended
(the “Code”), or any interest or penalties are incurred by Executive with
respect to such excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the “Excise Tax”),
then the Company shall pay to Executive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by Executive of all taxes
(including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.


 


(b)           Subject
to the provisions of Section 5(a), all determinations required to be made
under this Section 5, including whether and when a Gross-Up Payment is
required, the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determinations, shall be made by the public
accounting firm that is retained by the Company as of the date immediately
prior to the Change in Control (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and Executive within
fifteen (15) business days of the receipt of notice from the Company or
the Executive that there has been a Payment, or such earlier time as is
requested by the Company (collectively, the “Determination”).  In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change in Control, Executive may appoint another nationally recognized
public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder).  All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall
enter into any agreement requested by the Accounting Firm in connection with
the performance of the services hereunder. 
The Gross-up Payment under this Section 5 with respect to any
Payments shall be made no later than thirty (30) days following such
Payment; provided, however, in no event shall such payment be made earlier than
six (6) months and one (1) day after Executive separates from service
(within the meaning of Section 409A of the Code).  If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall furnish Executive with a written
opinion to such effect, and to the effect that failure to report the Excise
Tax, if any, on Executive’s applicable federal income tax return will not
result in the imposition of a negligence or similar penalty.  The Determination by the Accounting Firm
shall be binding upon the Company and Executive.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the Determination,
it is possible that Gross-up Payments which will not have been made by the
Company should have been made (“Underpayment”) or Gross-up Payments are made by
the Company which should not have been made (“Overpayment”), consistent with
the calculations required to be made hereunder. 
In the event that the Executive thereafter is required to make payment
of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine
the amount of the Underpayment that has occurred and any such Underpayment
(together with interest at the rate provided in Section 1274(b)(2)(B) of
the Code) shall be promptly paid by the Company to or for the benefit of
Executive.  In the event the amount of
the Gross-up Payment exceeds the amount necessary to reimburse the Executive
for his Excise Tax, the Accounting Firm shall determine 


 


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the amount of the
Overpayment that has been made and any such Overpayment (together with interest
at the rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by Executive (to the extent he has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company.  Executive shall
cooperate, to the extent his expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.


 


6.             Withholding Taxes.  The Company may withhold from all payments
due to Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.


 


7.             Reimbursement of
Expenses.  If any contest or dispute
shall arise under this Agreement involving termination of Executive’s
employment with the Company or involving the failure or refusal of the Company
to perform fully in accordance with the terms hereof, the Company shall pay
directly or reimburse Executive, on a current basis, for all reasonable legal
fees and expenses, if any, incurred by Executive in connection with such
contest or dispute (regardless of the result thereof), together with interest
in an amount equal to the prime rate of the Chase Manhattan Bank, N.A., from
time to time in effect, but in no event higher than the maximum legal rate
permissible under applicable law, such interest to accrue from the date the
Company receives Executive’s statement for such fees and expenses through the
date of payment thereof, regardless of whether or not Executive’s claim is
upheld by a court of competent jurisdiction/arbitration panel.  Any payments or reimbursement under this Section 7
shall be paid on the first business day which is six (6) months and one (1) day
after Executive has a “separation from service” under Section 409A of the
Code.  To the extent fees, expenses or
interest are incurred after such date, the Company shall pay or reimburse such
fees, expenses and interest pursuant to this Section 7 (to the extent not
previously paid or reimbursed) on the first business day of each month
following such date.  However, no
payments or reimbursements shall be made under this Section 7 after the
third anniversary of the date the last applicable statute of limitations has
run with respect to the claims which are the subject of the contest or dispute.


 


8.             Scope of
Agreement.  Nothing in this Agreement
shall be deemed to entitle Executive to continued employment with the Company
or its Subsidiaries, and if Executive’s employment with the Company shall
terminate prior to a Change in Control, Executive shall have no further rights
under this Agreement (except as otherwise provided hereunder); provided,
however, that any termination of Executive’s employment during the Termination
Period shall be subject to all of the provisions of this Agreement.


 


9.             Successors:  Binding Agreement.


 


(a)           This
Agreement shall not be terminated by any Business Combination.  In the event of any Business Combination, the
provisions of this Agreement shall be binding upon the Surviving Corporation,
and such Surviving Corporation shall be treated as the Company hereunder.


 


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(b)           The
Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company unconditionally to assume expressly and agree to perform
this Agreements in the same manner and to the same extent that the Company
would be required to perform if no such succession had taken place.  As used in this Agreement, “Company” means
the Company has hereinbefore defined, and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.  Failure
of the Company to obtain such assumption prior to the effectiveness of any such
succession that constitutes a Change in Control, shall be a breach of this
Agreement and shall constitute Good Reason hereunder and shall entitle
Executive to compensation and other benefits from the Company in the same
amount and on the same terms as Executive would be entitled hereunder if
Executive’s employment were terminated following a Change in Control by reason
of a Qualifying Termination.  For
purposes of implementing the foregoing, the date on which any such Business
Combination becomes effective shall be deemed the date Good Reason occurs, and
shall be the Date of Termination if requested by Executive.


 


(c)           This
Agreement is personal to the Executive and without the express prior written
consent of the Company shall not be assignable by the Executive otherwise than
by will or the laws of descent and distribution, and any such purported
assignment shall be void.  This Agreement
shall inure to the benefit of and be enforceable by Executive’s personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.  If
Executive shall die while any amounts would be payable to Executive hereunder had
Executive continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to such
person or persons appointed in writing by Executive to receive such amounts or,
if no person is so appointed, to Executive’s estate.


 


10.           Notice.


 


(a)             For purposes of this Agreement, all notices
and other communications required or permitted hereunder shall be in writing
and shall be deemed to have been duly given when delivered or five (5) days
after deposit in the United States mail, certified and return receipt
requested, postage prepaid, addressed as follows:


 


	
   

  	
  (b)

  	
  If to the
  Executive:

  
	
   

  	
   

  
	
   

  	
  Edwin E. Hightower, Jr.

  
	
   

  	
  2931 Dartmouth Ave. N.

  
	
   

  	
  St. Petersburg, FL 33713

  
	
   

  	
   

  
	
   

  	
  If to the Company:

  
	
   

  	
  Gevity HR, Inc.

  
	
   

  	
  9000 Town Center
  Parkway

  
	
   

  	
  Bradenton, FL
  34202

  
	
   

  	
  Attn: General
  Counsel

  



 


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herewith, except that
notices of change of address shall be effective only upon receipt.


 


(c)           A
written notice of Executive’s Date of Termination by the Company or Executive,
as the case may be, to the other, shall (i) indicate the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the
provision so indicated and (iii) specify the termination date (which date
shall be not less than fifteen (15) (thirty (30), if termination is by the
Company for Disability) nor more than sixty (60) days after the giving of
such notice).  The failure by Executive
or the Company to set forth in such notice any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
Executive or the Company hereunder or preclude Executive or the Company from
asserting such fact or circumstance in enforcing Executive’s or the Company’s
rights hereunder.


 


11.           Full Settlement;
Resolution of Disputes.  The Company’s
obligation to make any payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall be in lieu and in full settlement of
all other severance payments to Executive under any other severance or
employment agreement between Executive and the Company, and any severance plan
of the Company.  The Company’s
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others.  In no event
shall Executive be obligated to seek other employment or take other action by
way of mitigation of the amounts payable to Executive under any of the
provisions of this Agreement and, except as provided in Section 4(b), such
amounts shall not be reduced whether or not Executive obtains other employment.


 


12.           Employment with
Subsidiaries.  Employment with the
Company for purposes of this Agreement shall include employment with any
Subsidiary.


 


13.           Survival.  The respective obligations and benefits
afforded to the Company and Executive as provided in Sections 4 (to the
extent that payments or benefits are owed as a result of a termination of
employment that occurs during the term of this Agreement), 5 (to the extent
that Payments are made to Executive as a result of a Change in Control that
occurs during the term of this Agreement), 6, 7, 9(c) and 11 shall
survive the termination of this Agreement.


 


14.           GOVERNING LAW.  THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO
THE PRINCIPLE OF CONFLICTS OF LAWS.


 


15.           Severability.  The invalidity, illegality or
unenforceability of any provision of this Agreement shall not affect the
validity, legality or enforceability of any other provision of this Agreement,
which other provisions shall remain in full force and effect.  If the effect of a final 


 


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and unappealable holding or finding that any such
provision is either invalid, illegal or unenforceable is to modify to the
Executive’s detriment, reduce or eliminate any compensation, reimbursement,
payment, allowance or other benefit to the Executive intended by the Company
and Executive in entering into this Agreement, the Company shall promptly
negotiate and enter into an agreement with the Executive containing alternative
provisions (reasonably acceptable to the Executive) that will restore to the
Executive (to the extent legally permissible) substantially the same economic,
substantive and income tax benefits the Executive would have enjoyed had any
such provision of this Agreement been upheld as valid, legal and enforceable.


 


16.           Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.


 


17.           Miscellaneous.


 


(a)           No
provision of this Agreement may be modified or waived unless such modification
or waiver is agreed to in writing and signed by Executive and by a duly
authorized officer of the Company.  No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.


 


(b)           Failure
by Executive or the Company to insist upon strict compliance with any provision
of this Agreement or to assert any right Executive or the Company may have
hereunder, including without limitation, the right of Executive to terminate
employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.


 


(c)           Except
as otherwise specifically provided herein, the rights of, and benefits payable
to, Executive, his estate or his beneficiaries pursuant to this Agreement are
in addition to any rights of, or benefits payable to, Executive, his estate or
his beneficiaries under any other employee benefit plan or compensation program
of the Company.


 


(d)           If
any amounts which are required or determined to be paid or payable or
reimbursed or reimbursable to the Executive under this Agreement (or, following
a Change in Control, under any other plan, agreement, policy or arrangement
with the Company) are not so paid promptly at the times provided hereon or
therein, such amounts shall accrue interest at an annual percentage rate of ten
percent (10%) from the date such amounts were required or determined to have
been paid or payable or reimbursed or reimbursable to the Executive until such
amounts and any interest accrued thereon are finally and fully paid; provided,
however, that in no event shall the amount of interest contracted for, charged
or received hereunder exceed the maximum non-usurious amount of interest
allowed by applicable law.


 


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(e)           The
Executive acknowledges receipt of a copy of this Agreement (together with any
attachments hereto), which has been executed in duplicate and agrees that, with
respect to the subject matter hereof, this is the entire agreement with the
Company. Any other oral or any written representations, understandings or
agreements with the Company or any of its officers or representatives covering
the same subject matter which are in conflict with this Agreement hereby are
merged into and superseded by the provisions of this Agreement.  Notwithstanding anything to the contrary in
this Agreement, any payments made or benefits provided under this Agreement
shall be an offset to the payments and/or benefits otherwise payable under any
other agreement between Executive and the Company.


 


(f)            To
the extent this Agreement is subject to Section 409A of the Code,
Executive and the Company intend all payments under this Agreement to comply
with the requirements of such section, and this Agreement shall, to the extent
practical, be operated and administered to effectuate such intent.  To the extent necessary to avoid adverse tax
consequences under Section 409A of the Code, the timing of any payment
under this Agreement shall be delayed by six months and one day in a manner
consistent with § 409A(a)(2)(B)(i) of the Code.


 


(g)           If the Company engages
in a sale of substantially all its assets and Executive is offered comparable
employment with the buyer of such assets, the Company and the buyer shall
specify in writing at the time of the sale whether Executive has a termination
of employment in connection with the sale; provided, however, (i) the
buyer must accept assignment of this Agreement in order for the Company to
agree that no termination of employment has occurred, (ii) if the buyer
and the Company fail to specify whether a termination of employment has
occurred, Executive shall be treated as having terminated employment and (iii) any
determination of whether a termination of employment has occurred shall be made
in accordance with Treas. Reg. 1.409A-1(h)(4).


 


IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and Executive has executed
this Agreement as of the day and year first above written.


 


 


	
   

  	
  GEVITY HR, Inc.

  
	
   

  	
   

  
	
   

  	
  /s/ Garry J. Welsh

  
	
   

  	
  Name:

  	
  Garry J. Welsh

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  /s/Edwin E.
  Hightower, Jr.

  
	
   

  	
  Executive

  



 


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