EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of this _____ day
of ____________, 1996, by and between Xxxxxxx X. Xxxx (the "Executive") and
BankUnited Financial Corporation, a Florida corporation ("BankUnited"), and its
principal wholly owned subsidiary, BankUnited, FSB (BankUnited and BankUnited,
FSB are collectively referred to herein as the "Company" and are jointly and
severally obligated hereunder, subject to the provisions of Section 11(b)
hereof).
WHEREAS, the Executive has provided valuable service to the Company as
an executive officer and is currently serving as Executive Vice President of
BankUnited and Executive Vice President of BankUnited, FSB;
WHEREAS, the Board of Directors of BankUnited and the Board of Directors
of BankUnited, FSB (sometimes collectively referred to herein as the "Board")
have determined that it is in the best interests of the Company and its
stockholders to assure that the Company will have the continued dedication and
service of the Executive as a member of the Company's management;
WHEREAS, the Board in addition believes it is imperative to diminish the
inevitable distraction of the Executive by virtue of the personal uncertainties
and risks created by a pending or threatened Change in Control of the Company
(as defined herein), and to encourage the Executive's full attention and
dedication to the Company;
WHEREAS, in order to accomplish these objectives, the Board has caused
the Company to enter into this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. In addition to the words and terms defined
elsewhere herein, the following words and terms as used herein shall have the
meanings as set forth below, unless the context or use indicates a different
meaning:
(a) "CAUSE" means any action or inaction of the
Executive involving personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform the Executive's duties as described in Section 3, willful violation of
any law, rule or regulation (other than traffic violations or similar offenses),
or final cease-and-desist order, or material breach of any provision of this
Agreement.
(b) "CHANGE IN CONTROL" shall be deemed to have
occurred on the date when:
(i) A reorganization, merger or consolidation
of the Company shall have been consummated, in which the Company is not the
continuing or surviving corporation or pursuant to which shares of the Company's
voting securities would be converted into cash, securities or other property,
other than a merger of the Company in which the holders of the Company's voting
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securities immediately prior to the merger have substantially the same
proportionate ownership of the voting securities of the surviving corporation
immediately after the merger;
(ii) Liquidation or dissolution of the
Company, or sale, lease, exchange or transfer (in one transaction or a series of
related transactions) of all or substantially all of the Company's assets shall
have been consummated; or
(iii) Any "person" (as such term is
defined in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934,
as amended [the "Exchange Act"]) or group of persons, excluding BankUnited and
any of its subsidiaries, other than Xxxxxx X. Xxxxxx or a group which includes
Xxxxxx X. Xxxxxx, shall have acquired direct or indirect beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of securities of the
Company representing 51% or more of the voting power of the Company's then
outstanding securities;
provided, however, that a Change in Control shall not occur if the Chief
Executive Officer of the Company as of the date of this Agreement executes,
prior to or simultaneously with the occurrence of any one of the events set
forth in subsections (i), (ii) and (iii) of this Section 1(b), an employment
agreement with the entity or person that will acquire control of the Company or
all or substantially all of the Company's assets, or will result from a
reorganization, merger or consolidation of the Company, whereby the Chief
Executive Officer agrees to continue as the principal executive or principal
operating officer of the Company; and, provided further, that the renewal or
extension of the term of any employment agreement to which the Chief Executive
Officer is bound immediately prior to the Date of the Change in Control, or the
assumption of the obligations set forth in such agreement, shall not be deemed
to be the execution of an employment agreement by the Chief Executive Officer
for purposes hereof.
(c) "CONTRACT EXPIRATION DATE" means the date
one year from the Date of the Change in Control.
(d) "DATE OF THE CHANGE IN CONTROL" means the
date on which a Change in Control shall be deemed to have occurred.
(e) "DATE OF TERMINATION" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that if the Executive's employment is terminated
by reason of the Executive's death or Disability, the Date of Termination shall
be the date of death of the Executive or the Disability Effective Date, as the
case may be.
(f) "DISABILITY" means any physical or mental
condition that wholly prevents the Executive from performing her duties for at
least six months after the commencement of such condition and that is determined
to be of a permanent duration by a physician acceptable to the Company and the
Executive or the Executive's legal representative (such agreement as to
acceptability not to be unreasonably withheld). If the Company determines in
good faith that the Disability of the Executive has occurred, it may give to the
Executive written notice of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective the Disability Effective Date, provided that the Executive
shall not
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have returned to full-time performance of the Executive's duties prior to the
Disability Effective Date. Any subsequent Disability, whether of a similar
nature or not, shall not be deemed a continuation of a prior Disability and, the
determination of time for the purposes of this provision shall recommence.
(g) "DISABILITY EFFECTIVE DATE" means the date
30 days following receipt by the Executive of notice from the Company of the
Company's intention to terminate the Executive's employment because of the
Executive's Disability.
(h) "EMPLOYMENT PERIOD" means the one-year
period commencing on the date of this Agreement, subject to renewal or extension
as provided in Section 2 hereof.
(i) "GOOD REASON" means the occurrence after a
Change in Control of any of the following:
(A) the assignment to the Executive of any
duties substantially inconsistent with and inferior to the position or positions
held, exercised by and assigned to the Executive immediately prior to the Date
of the Change in Control, or any other action by the Company that results in a
material diminution in such position, excluding for this purpose an
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(B) a reduction in the Executive's salary
as in effect immediately prior to the Date of the Change in Control or as the
same may be increased from time to time, provided, however, that if the
Executive terminates her employment after a Change in Control as a result of a
reduction in her salary of 5% or more, such termination shall be considered for
all purposes of this Agreement a termination by the Company Other than for
Cause;
(C) any failure by the Company to make
payments of all amounts due from time to time under all of the Company's benefit
plans for which the Executive is eligible;
(D) the Company's requiring the Executive
to be based at any office or location other than the location where the
Executive was employed immediately prior to the Date of the Change in Control,
or at any office or location within 25 miles from such location, or at such
other location as shall be mutually agreed to by the parties, except for travel
reasonably required in the performance of the Executive's responsibilities or a
relocation of the Executive on a temporary basis; or
(E) failure by the Company to comply with
the provisions of this Agreement or the failure of the Company to obtain the
assumption of the commitment to perform this Agreement by any successor
corporation.
(j) "HIGHEST SALARY RATE" means the higher of
the Executive's annual salary rate paid by the Company in effect as of the Date
of Termination or in effect immediately prior to the Date of the Change in
Control.
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(k) "NOTICE OF TERMINATION" means a written
notice that (i) indicates the specific termination provision in this Agreement
relied upon, (ii) in the case of termination for Cause or Good Reason, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (iii) if the Date of Termination is other than the date of
receipt of such notice, specifies the termination date.
(l) "OTHER THAN FOR CAUSE" means a termination
of the Executive's employment by the Company after a Change in Control that does
not qualify as a termination for death, Disability or Cause, or a termination of
the Executive's employment by the Executive after a Change in Control as a
result of a reduction in the Executive's salary of 5% or more.
(m) "OTHER THAN FOR GOOD REASON" means a
termination of the Executive's employment by the Executive after a Change in
Control that does not qualify as a termination for Good Reason.
(n) "RESIGNATION PAYMENT" means a lump sum cash
payment in an amount equal to twice the aggregate of the Executive's Highest
Salary Rate and twice her most recent Cash Bonus; provided, however, that such
amount should be reduced pursuant to Section 6(d) of the Agreement, if
applicable.
(o) "TERMINATION PAYMENT" means a lump sum cash
payment in an amount equal to twice the aggregate of the Executive's Highest
Salary Rate and twice her most recent Cash Bonus multiplied by one and one-half;
provided, however, that such amount should be reduced pursuant to Section 6(d)
of the Agreement, if applicable. The Termination Payment shall be paid to the
Executive as provided for in the trust agreement to be entered into by the
Company establishing a trust for the payment of the Termination Payment, or, in
the event that such trust is not established or sufficiently funded, then the
Termination Payment or any portion thereof not paid pursuant to such trust
agreement shall be paid to the Executive by the Company.
(p) "Vested Benefits" means all amounts earned by and
vested in the Executive pursuant to the plans, programs, policies and practices
of the Company, including, without limitation, the BankUnited Financial
Corporation Profit Sharing Plan, the Executive Retention Plan, disability
insurance plan, and group and supplemental life insurance plans. For purposes
hereof, Vested Benefits shall include continuation of the Executive's medical
insurance for nine months from the Date of Termination or until the Executive
becomes covered by another medical insurance plan or eligible for Medicare,
whichever is shorter.
2. EMPLOYMENT. The Company hereby agrees to continue to
employ the Executive and the Executive hereby agrees to continue to remain in
the employ of the Company during the Employment Period, on the terms and
conditions set forth herein. Prior to a Change in Control of the Company, this
Agreement may upon the affirmative action of the Board of Directors of the
Company be renewed for successive one-year periods, unless 30 days' advance
notice is given by the Executive to the Company regarding her termination of
this Agreement, or unless otherwise terminated pursuant to Sections 5(a) or 5(b)
hereof. If a Change in Control occurs and this Agreement and the Executive's
employment hereunder have not been previously terminated, then the
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Employment Period shall be extended through the Contract Expiration Date,
whereupon this Agreement shall expire, unless sooner terminated in accordance
with the provisions hereof.
3. POSITION AND DUTIES. The Executive shall serve as
Executive Vice President of BankUnited and of BankUnited, FSB and shall exercise
such authority and perform such executive duties as may from time to time be
assigned to the Executive by the Board or the Chief Executive Officer of the
Company. Such services shall be performed at the Company's principal executive
offices in Dade County, Florida, or at such other location as shall be mutually
agreed to by the parties. The Executive agrees that during the Employment Period
he will devote her full business time to her executive duties as described
herein and will perform such duties faithfully and efficiently. It is understood
that the Executive may be a director of other corporations and engage in
charitable, civic and similar pursuits if such activities do not interfere
unduly with her devoting her best efforts to the business of the Company.
4. COMPENSATION AND OTHER BENEFITS. During the Employment
Period, the Executive shall be compensated as follows:
(a) SALARY. He shall receive an annual salary
as set by the Compensation Committee of the Board of Directors, payable pursuant
to the Company's standard payroll practices for executives.
(b) OTHER BENEFITS. He shall be entitled to
receive the usual employee benefits afforded to employees of the Company, such
as medical, disability and life insurance benefits, in accordance with the
policies as may be set from time to time by the Board.
5. TERMINATION PRIOR TO A CHANGE IN CONTROL.
(a) TERMINATION. This Agreement and the
Executive's employment hereunder may be terminated by the Board or the Executive
Committee of the Board (the "Executive Committee") at any time prior to a Change
in Control of the Company, for any reason that the Board may determine in its
sole discretion, which reasons may include, without limitation, Cause or any
reasons other than Cause.
(b) DEATH OR DISABILITY. This Agreement shall
terminate automatically upon the Executive's death and may be terminated by the
Company upon the Executive's Disability.
(c) COMPENSATION. If the Executive's employment
is terminated for any reason prior to a Change in Control, this Agreement shall
terminate without further obligations to the Executive or her legal
representatives, other than those obligations accrued or earned and vested (if
applicable) by the Executive as of the Date of Termination in accordance with
the plans, programs, policies and practices of the Company under which such
obligations accrued or were earned and vested (if applicable). Such obligations
shall be paid in accordance with the terms and provisions of the plans,
programs, policies and practices of the Company under which they accrued or were
earned and vested (if applicable). Notwithstanding the foregoing, severance or
other compensation or benefits payable upon termination, other than those
expressly required by law, shall be determined and paid only in the sole
discretion of the Board or the Executive Committee.
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6. TERMINATION AFTER A CHANGE IN CONTROL. If a Change in
Control occurs and this Agreement and the Executive's employment hereunder have
not been previously terminated, then the Executive shall be entitled to receive
certain payments and benefits as provided in this Section 6 if the Executive's
employment is terminated after the Change in Control.
(a) Termination for Death or Disability. This
Agreement shall terminate automatically upon the Executive's death and may be
terminated by the Company upon the Executive's Disability. Upon a termination by
reason of the Executive's death or Disability, the Company shall, within 30 days
after the Date of Termination, pay to the Executive or her estate or
beneficiaries, as the case may be, (i) any compensation or other obligations
accrued for periods prior to the Date of Termination, (ii) the Termination
Payment, and (iii) the Executive's Vested Benefits as of the Date of
Termination.
(b) Termination by the Company.
(i) Cause. This Agreement and the
Executive's employment hereunder may be terminated by the Company for Cause.
Upon a termination for Cause, this Agreement shall terminate without further
obligations to the Executive, other than those obligations accrued or earned and
vested (if applicable) by the Executive through the Date of Termination in
accordance with the plans, programs, policies and practices of the Company under
which such obligations accrued or were earned and vested (if applicable). Such
obligations shall be paid to the Executive in accordance with the terms and
provisions of the plans, programs, policies and practices of the Company under
which they accrued or were earned and vested (if applicable).
(ii) Other than for Cause. If this
Agreement and the Executive's employment hereunder is terminated by the Company
Other than for Cause, the Company shall, within 30 days after the Date of
Termination, pay to the Executive (A) any compensation or other obligations
accrued for periods prior to the Date of Termination, (B) the Termination
Payment, and (C) the Executive's Vested Benefits as of the Date of Termination.
(c) Termination by the Executive.
(i) Good Reason.
(A) The Executive may terminate this
Agreement and her employment hereunder for a Good Reason if any termination is
initiated by the Executive at any time following the Date of the Change in
Control, then such termination shall be deemed conclusively to be a termination
for Good Reason for all purposes of this Agreement and shall not be challenged
for any reason by the Company or by any person acting or purporting to act for
or on behalf of the Company.
(B) Upon a termination for Good Reason
as provided in subsection (c)(i)(A) of Section 6, the Company shall, within 30
days after the Date of Termination, pay to the Executive (1) any compensation or
other obligations accrued for periods prior to the Date of Termination, (2) the
Resignation Payment, and (3) the Executive's Vested Benefits as of the Date of
Termination.
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(C) The failure by the Executive to
set forth in the Notice of Termination any fact or circumstance that contributes
to a showing of Good Reason shall not waive any right of the Executive hereunder
or preclude the Executive from asserting such fact or circumstance in enforcing
her rights hereunder.
(ii) OTHER THAN FOR GOOD REASON. If this
Agreement and the Executive's employment hereunder is terminated by the
Executive Other than for Good Reason, this Agreement shall terminate without
further obligations to the Executive, other than those obligations accrued or
earned and vested (if applicable) by the Executive through the Date of
Termination in accordance with the plans, programs, policies and practices of
the Company under which such obligations accrued or were earned and vested (if
applicable). Such obligations shall be paid to the Executive in accordance with
the terms and provisions of the plans, programs, policies and practices of the
Company under which they accrued or were earned and vested (if applicable). If
the Executive terminates her employment Other than for Good Reason, he shall not
be entitled to receive the Resignation Payment or the Termination Payment.
(d) APPLICATION OF SECTION 280G OF THE INTERNAL
REVENUE CODE. It is the intention of the parties that, in the event of a Change
in Control of the Company, the payments under Section 6 shall not constitute
"excess parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended, and any regulations promulgated by the
Internal Revenue Service thereunder. In the event that the independent
accountants acting as auditors for the Company on the Date of the Change in
Control (or another accounting firm designated by them) determine that the
payments under Section 6 may constitute "excess parachute payments," the amounts
payable pursuant to Section 6 shall be reduced to the maximum amount that may be
paid without constituting the payments "excess parachute payments." Such
determination pursuant to this Section 6(d) shall take into account (i) whether
the payments under this Agreement are "parachute payments" within the meaning of
Section 280G and, if so, (ii) the amount of payments under Section 6 that
constitutes "reasonable compensation" within the meaning of Section 280G.
Nothing contained in this Agreement shall prevent the Company after a Change in
Control from agreeing to pay the Executive compensation or benefits in excess of
those provided in this Agreement.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plans, programs, policies or practices
provided by the Company or any of its subsidiaries and for which the Executive
may qualify, nor shall anything herein limit or otherwise affect such rights as
the Executive may have under any stock option or other agreements with the
Company or any of its subsidiaries. Any amounts that are Vested Benefits or that
the Executive is otherwise entitled to receive under any plan, policy, practice
or program of the Company at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program, and nothing
contained in this Agreement shall serve or be construed to divest the Executive
of any such benefits.
8. NO MITIGATION. The Executive shall not be required to
mitigate the amount of any payment or benefit provided for in this Agreement by
seeking other employment or otherwise. Income earned by the Executive following
the Date of Termination shall have no effect whatsoever on the Company's
obligations and the Executive's rights hereunder, and shall not give rise to any
set-off or recoupment by the Company.
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9. CERTAIN REGULATORY CONSIDERATIONS.
(a) If the Executive is suspended and/or
temporarily prohibited from participating in the conduct of BankUnited, FSB's
affairs by a notice served under Sections 8(e)(3) or (g)(1) of the Federal
Deposit Insurance Act (12 U.S.C. 1818 (e)(3) or (g)(1)), (the "Act"), the
Company's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in such notice
are dismissed, the Company shall pay to the Executive all of the compensation
withheld while the obligations under this Agreement were suspended and shall
reinstate its obligations hereunder.
(b) If the Executive is removed and/or
permanently prohibited from participating in the conduct of BankUnited, FSB's
affairs by an order issued under Sections 8(e)(4) or (g)(1) of the Act (12
U.S.C. 1818 (e)(4) or (g)(1)), all obligations of the Company shall terminate as
of the effective date of the order, but vested rights of the parties hereto
shall not be affected.
(c) If BankUnited, FSB is in default (as defined
in Section 3(x)(1) of the Act), all obligations under this Agreement shall
terminate as of the date of default, but this subsection shall not affect any
vested rights of the parties hereto.
(d) All obligations under this Agreement shall
be terminated, except to the extent determined that continuation of this
Agreement is necessary for the continued operation of BankUnited, FSB, (i) by
the Director of the Office of Thrift Supervision or her designee (the
"Director"), at the time the Federal Deposit Insurance Corporation ("FDIC") or
the Resolution Trust Corporation (the "RTC") enters into an agreement to provide
assistance to or on behalf of BankUnited, FSB under the authority contained in
Section 13(c) of the Act; or (ii) by the Director, at the time the Director
approves a supervisory merger to resolve problems related to operation of
BankUnited, FSB or when BankUnited, FSB is determined by the Director to be in
an unsafe or unsound condition. Any rights of the parties hereto that have
already vested, however, shall not be affected by such action.
10. WITHHOLDING. The Company may withhold from any amounts
payable under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulations.
11. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement is personal to the Executive
and, without the prior written consent of the Company, shall not be assignable
by the Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the Executive
and the Executive's legal representatives.
(b) BankUnited and BankUnited, FSB shall be
jointly and severally obligated under this Agreement; provided, however, that to
the extent any payments provided for hereunder are obligations of BankUnited
only, BankUnited, FSB shall not be deemed to be a guarantor of such payments or
otherwise liable therefor.
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(c) This Agreement shall inure to the benefit of
and be binding upon and enforceable by the Company and its successors and
assigns.
(d) 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 to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent as the Company would be required to perform if no such succession had
taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid that assumes and agrees to perform this Agreement by operation of law
or otherwise.
12. SURVIVAL. The obligations of the parties hereto
pursuant to Sections 5(c), 6 and 17 hereof shall survive any termination of this
Agreement.
13. GOVERNING LAW. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Florida.
14. SEVERABILITY. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect.
15. ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This
Agreement contains the entire understanding of the parties hereto with respect
to the subject matter hereof. No modification or waiver of any provision of this
Agreement shall be binding unless executed in writing by all parties hereto. No
waiver of any provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar), nor shall any
such waiver constitute a continuing waiver. The failure of the Executive or the
Company to insist upon strict compliance with any provision hereof shall not be
deemed to be a waiver of such provision or any other provision hereof.
16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. LEGAL EXPENSES. In the event of any litigation arising
out of or related to this Agreement, the prevailing party shall be entitled to
recover all costs incurred, including reasonable attorneys' fees and trial and
appellate court costs.
18. NOTICES. Any notices, requests, demands and other
communications provided for by this Agreement shall be sufficient if in writing
and if sent by registered or certified mail to the Executive at the last address
he has provided in writing to the Company or to the Company at its principal
executive offices.
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IN WITNESS WHEREOF, _________ the Executive and, pursuant to the
authorization from the Board, BankUnited and BankUnited, FSB have executed this
Agreement as of the date first above written.
BANKUNITED FINANCIAL CORPORATION
By:
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BANKUNITED, FSB
By:
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EXECUTIVE
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