EXHIBIT 99.2
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 15th
day of April, 2001 by and between Xxxxx Xxxxxxxx (hereinafter "Xx. Xxxxxxxx" or
the "Executive") and BankUnited, FSB (hereinafter the "Bank").
Recitals
A. Xx. Xxxxxxxx has relinquished his substantial and material duties as
President and Chief Operating Officer of BankUnited Financial Corporation
(BankUnited) and BankUnited, FSB and he has entered into a new Agreement with
BankUnited (the BankUnited Agreement) which establishes revised duties and sets
out new terms of engagement which substitute for and supersede his prior
Employment Agreement with BankUnited and BankUnited FSB.
B. This Agreement is entered into as a complement to the Agreement
between Xx. Xxxxxxxx and BankUnited and is set out separately in acknowledgement
of the Bank's legal status and to assure the Bank's compliance with applicable
federal and state regulations. Nothing in this Agreement is intended to bestow
greater rights on Xx. Xxxxxxxx than the BankUnited Agreement or to prejudice Xx.
Xxxxxxxx'x rights thereunder.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions: The words and terms "Date of Termination",
"Notice of Termination" and "Vested Benefits" shall have the same meanings set
forth in Section 1 of the BankUnited Agreement.
TERMS OF ENGAGEMENT
2.1. Engagement and Term. The Bank agrees to engage Xx. Xxxxxxxx, and
Xx. Xxxxxxxx hereby agrees to provide services to the Bank, on the terms and
conditions set forth herein, for a period of one (1) year commencing on June 1,
2001 (hereinafter the "Commencement Date") and expiring at the conclusion of May
31, 2002 ( the "Term") subject to renewal by the Board of Directors, from
year-to-year for up to fourteen additional years, unless Xx. Xxxxxxxx resigns
prior to that time or is sooner terminated as hereinafter set forth.
2.2 Scope of Engagement. Xx. Xxxxxxxx shall serve as Executive Vice
Chairman of the Bank or as otherwise assigned by the Chairman of the Board. Xx.
Xxxxxxxx'x status as an officer of the Bank may change from time-to-time, in the
Board's sole discretion, and may include appointment to such designated
responsibilities as the Board shall determine. To the extent his health and
doctors permit, Xx. Xxxxxxxx shall diligently perform all services as
may be reasonably assigned to him by the Board or its Chairman and shall
exercise such power and authority as may from time-to-time be delegated to him
by the Board or its Chairman. Xx. Xxxxxxxx shall be subject solely to the
supervision and direction of the Board or its Chairman. To the extent his health
and doctors permit, Xx. Xxxxxxxx shall devote substantially all of his available
working time and attention exclusively to the business and affairs of BankUnited
or BankUnited, FSB and shall render such services efficiently and to the best of
his ability, and shall use his best efforts to promote the interests of the Bank
and BankUnited. Nothing herein shall prevent Xx. Xxxxxxxx from engaging in or
pursuing his personal investments or volunteer activities provided they are not
proscribed by Section 9 herein and do not interfere with his duties on behalf of
BankUnited or BankUnited, FSB.
3. Compensation.
3.1 Xx. Xxxxxxxx shall be compensated in installments,
consistent with BankUnited's normal compensation practices, as may be changed
from time to time with advance notice. Xx. Xxxxxxxx'x compensation entitlements,
for the first Term of this Agreement, and for any annual Term thereafter, if
renewed by the Board, shall be in accordance with the compensation schedule and
process set forth in Sections 3.1 and 3.2 of the BankUnited Agreement.
4. Additional Benefits.
4.1 Expense Reimbursement. During the Term, the Bank or
BankUnited, upon the submission of supporting documentation by Xx. Xxxxxxxx in a
form sufficient to permit deduction thereof under applicable tax law, shall
promptly reimburse Xx. Xxxxxxxx for all reasonable expenses actually paid or
incurred by Xx. Xxxxxxxx in the course of and pursuant to the business of the
Bank, including expenses for entertainment and all travel and living expenses
while away from home on business or at the request of the Bank, provided that
such expenses are incurred and accounted for in accordance with the Bank's
regular policies and procedures.
4.2 Xx. Xxxxxxxx shall receive those other benefits provided
under Section 4.2 of the BankUnited Agreement.
5. Termination.
5.1 Termination for Cause. Notwithstanding anything contained
herein to the contrary, this Agreement may be terminated by the Bank for any
reason, including Cause. As used in this Agreement, "Cause" shall only mean (i)
any action or omission of Xx. Xxxxxxxx which constitutes a willful and material
breach of this Agreement, which is not cured within sixty (60) days after
receipt by Xx. Xxxxxxxx, or his designated representative, of specific written
notice of same; or (ii) Xx. Xxxxxxxx is convicted of a felony or enters a plea
of guilty or nolo contendere to a criminal act which is a felony; or (iii) Xx.
Xxxxxxxx willfully and materially breaches a fiduciary duty owed to the Bank,
for personal profit; (iv) Xx. Xxxxxxxx willfully and materially violates any
law, rule, regulation (other than traffic violations or
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similar offenses), or final cease and desist order in connection with his
performance of services for the Bank. Notwithstanding the foregoing, Xx.
Xxxxxxxx shall not be deemed to be terminated for Cause unless and until:
(a) the Board first holds a meeting, as to which Xx. Xxxxxxxx
was provided thirty (30) days advance notice and an opportunity to be heard, and
the Board delivers written notice to Xx. Xxxxxxxx specifying in detail the
action or inaction alleged to constitute Cause and demanding that he remedy such
action or inaction; and
(b) Xx. Xxxxxxxx shall not have remedied such action or
inaction allegedly constituting Cause within sixty (60) days after his receipt
of such written notice;
(c) there shall have been delivered to Xx. Xxxxxxxx a Notice
of Termination and a certified copy of a resolution duly adopted by the
affirmative vote of at least a majority of the Board (excluding Xx. Xxxxxxxx) at
a special meeting of the Board at which he was given an opportunity to appear
with legal counsel of his choosing to refute any allegations of Cause, which
meeting was called and held for the purpose of finding that, in the good faith
opinion of the Board, Xx. Xxxxxxxx'x action or inaction constituted Cause and he
did not remedy such action or inaction after demand by the Board;
(d) Nothing in Section 5.1(b) shall, prior to delivery of a
Notice of Termination as provided herein, be deemed to suspend or extinguish Xx.
Xxxxxxxx'x entitlement to receive the compensation and other benefits provided
under Sections 3, 4, 5.2 and 6. In the event that the Bank terminates Xx.
Xxxxxxxx for Cause and, within 30 days after receipt of the Notice of
Termination, Xx. Xxxxxxxx notifies the Company that he disputes such
termination, any pay or entitlements from the Bank shall be suspended pending
any period of contest but such suspension shall not prejudice Xx. Xxxxxxxx'x
right to compensation or benefits under his Agreement with BankUnited Financial
Corporation unless action is taken separately pursuant to that Agreement;
(e) If Xx. Xxxxxxxx is removed and/or prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or g(1) of the Federal Deposit Insurance Act, all obligations of
the Bank under this Agreement shall immediately terminate provided that any
vested rights of Xx. Xxxxxxxx shall not be affected and provided further that
such action shall not prejudice any rights under Xx. Xxxxxxxx'x Agreement with
BankUnited Financial Corporation.
(f) In the event there is a default of the Bank, as defined in
Section 3(x)(1) of the Federal Deposit Insurance Act, the Bank's obligations
under this Agreement shall terminate unless assumed by the Federal Deposit
Insurance Corporation or the Resolution Trust Company to allow for continued
operation of the Bank, provided that any assumption of this Agreement is
acceptable to Xx. Xxxxxxxx and provided further that any termination of this
Agreement shall not affect any vested right of Xx. Xxxxxxxx or affect his rights
under his Agreement with BankUnited Financial Corporation.
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5.2 Termination for Death. This Agreement shall terminate
automatically upon Xx. Xxxxxxxx'x death. Upon a termination by reason of Xx.
Xxxxxxxx'x death, all benefits shall vest and the Bank or BankUnited shall,
within 15 days after the Date of Termination, pay to Xx. Xxxxxxxx'x estate or
beneficiaries as the case may be any unpaid compensation accrued for periods
prior to the Date of Termination. In addition, the proceeds from the group life
insurance policy shall be paid to his personal representative or such other
persons as Xx. Xxxxxxxx may have designated in writing as his beneficiary(s).
6. Change in Control.: A "Change in Control" shall be deemed to have
occurred under the conditions set forth in Section 6 of the BankUnited Agreement
and shall include a qualifying disposition of the Bank. In the event of a change
in control, Xx. Xxxxxxxx'x entitlements and BankUnited's obligations will be as
set forth in the BankUnited Agreement.
7. Regulatory Considerations.
Notwithstanding anything herein to the contrary, any payments
to Xx. Xxxxxxxx by the Bank, whether pursuant to this Agreement or otherwise,
are subject to and conditioned on compliance with Section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. ' 1828(k) and any regulations promulgated
thereunder.
8. Withholding. The Bank 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.
9. Non-Competition.
9.1 Xx. Xxxxxxxx acknowledges that during the term of his
previous employment with BankUnited and the Bank and during the Term of this
Agreement, he has learned or will learn or be privy to valuable confidential
business information of the Bank, and he has developed and cultivated on behalf
of the Bank substantial relationships with past, present and prospective
business customers of the Bank. During the term of this Agreement and
thereafter, Xx. Xxxxxxxx will not, directly or indirectly, use or disclose to
anyone, or authorize disclosure of any confidential information or trade secrets
except for the benefit of the Bank or BankUnited.
9.2 Xx. Xxxxxxxx acknowledges that the confidentiality of the
protected information with which Xx. Xxxxxxxx has been or may become privy is
essential and proprietary to the Bank or BankUnited and is owned and shall
continue to be owned by the Bank or BankUnited. Xx. Xxxxxxxx agrees that at the
termination of his employment, for whatever reason, he will return to the Bank
or BankUnited immediately any and all documents in whatever form that are in his
possession or control and that contain, reflect or refer to confidential
information or trade secrets.
9.3 During the Term of this Agreement and for 24 months
following the termination of this Agreement, if this Agreement is ended at less
than full term, except as
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otherwise approved in writing by the Chairman of the Board, Xx. Xxxxxxxx shall
not, either directly or indirectly, or for himself or through, on behalf of, or
in conjunction with any other person, persons or legal entity, own, maintain,
operate, engage in, assist, be employed by, or have any interest in any business
engaging or planning to be engaged in banking or offering other financial
services offered by the Bank or BankUnited, in any respect, within Palm Beach
County, Broward County, Xxxxxxx County, Miami-Dade County, or within a 50 mile
radius of the County Courthouse of any other County in which BankUnited has
banking operations provided, however, that nothing in this paragraph shall
prevent ownership of up to 5% of any class of equity securities that are traded
publicly and provided further that Xx. Xxxxxxxx shall not be restricted, outside
the designated four county area, from providing other financial services where
the Bank or BankUnited's operations are limited solely to the wholesale or
retail residential mortgage business.
9.4 During the Term of this Agreement and for a period of 24
months thereafter, Xx. Xxxxxxxx shall not:
(a) either directly or indirectly, employ, retain the services
of, or seek to employ or retain the services of any person who is at that time
or was within the previous six months employed by, or providing services to
BankUnited or BankUnited, FSB, without the prior express written permission of
BankUnited, which BankUnited may in its absolute discretion withhold;
(b) either directly or indirectly solicit or contact customers
of BankUnited or BankUnited, FSB whose identity Xx. Xxxxxxxx learned while
employed by BankUnited, or Bank United, FSB which solicitation is for or on
behalf of any entity engaged in or seeking to be engaged in BankUnited's banking
business or in direct competition with BankUnited.
9.5 Xx. Xxxxxxxx and the Bank warrant that it is their
intention to agree to restrictions on disclosure of confidential information and
on competition that are as broad as permitted by Florida law and hereby agree to
subscribe to any expansion of the recited agreements as may be authorized by any
subsequent amendment to, or interpretation of Florida Statute Section 542.235
(2000) or any other Florida law. For purposes of this Non-Competition
Agreement, Xx. Xxxxxxxx shall be deemed retained by the Bank or BankUnited
during any period of time in which he receives compensation from BankUnited or
its successors.
9.6 Xx. Xxxxxxxx acknowledges that the provisions of Section 2
and Section 9 are the essence of this Agreement for the Bank and BankUnited and
Xx. Xxxxxxxx agrees that if he engages in activities prohibited by Section 9,
irreparable harm to the Bank or BankUnited will likely result, for which a
remedy in the form of damages may not be ascertainable. Under such
circumstances, Xx. Xxxxxxxx acknowledges that the Bank or BankUnited may seek
temporary, preliminary or permanent injunctive relief against him in any court
of competent jurisdiction upon three days written notice provided to the address
listed in Section 14. This section shall not limit any other legal or equitable
remedies BankUnited or its successors may have against Xx. Xxxxxxxx for
violation of this Agreement.
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10. Attorneys' Fees and Waiver. The Bank or BankUnited shall pay
reasonable costs and attorneys' fees incurred by Xx. Xxxxxxxx in connection with
any Board action pursuant to Section 5.1 in the event that the Board does not
determine that "Cause" exists in accordance with the procedures in said Section.
The Bank or BankUnited shall also indemnify, hold harmless and defend Xx.
Xxxxxxxx against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that Xx. Xxxxxxxx shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the Bank's
obligations hereunder shall be conclusive evidence of Xx. Xxxxxxxx'x entitlement
to indemnification hereunder, and any such indemnification payments shall be in
addition to amounts payable pursuant to such settlement agreement, unless such
settlement agreement expressly provides otherwise. In consideration for
BankUnited's advancement of attorney's fees and litigation costs incurred by Xx.
Xxxxxxxx in any action against the Bank or BankUnited under the terms of this
Section, Xx. Xxxxxxxx hereby waives any right he may have to a jury trial or
punitive damages in any such proceeding.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
12. Non-Alienation. Xx. Xxxxxxxx shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts provided
under this Agreement, and no payments or benefits due hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts or
by operation of law. So long as Xx. Xxxxxxxx lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or in
the subject matter hereof.
13. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Bank:
Xxxxxx X. Xxxxxx, Chairman
BankUnited, FSB
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
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If to Xx. Xxxxxxxx:
Xxxxx Xxxxxxxx
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
14. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted.
15. Guarantee. This Agreement is complementary to Xx. Xxxxxxxx'x
Agreement with BankUnited in which BankUnited has agreed to guarantee the
payment by the Bank of any benefits and compensation to which Xx. Xxxxxxxx is or
may be entitled to under the terms and conditions of this Agreement effective as
of the 15th day of April, 2001 between the Bank and Xx. Xxxxxxxx, a copy of
which is attached hereto as Exhibit A ("Bank Agreement").
16. Successors; Binding Agreement.
16.1 Unless otherwise controlled by Article 6, the Bank or
BankUnited shall require any successor to assume and agree to perform this
Agreement in the same manner and to the same extent that the Bank or BankUnited
would be required to perform it if no such acquisition had taken place and Xx.
Xxxxxxxx agrees to continue to be bound by this Agreement if such assumption
occurs.
16.2 This Agreement shall inure to the benefit of and be
enforceable by Xx. Xxxxxxxx'x personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. This
Agreement is personal to Xx. Xxxxxxxx and, without the prior written consent of
the Company, shall not be assignable otherwise than by will or the laws of
descent and distribution.
17. Non-duplication. It is intended that the BankUnited Agreement set
forth the aggregate compensation, benefits and perquisites payable to Xx.
Xxxxxxxx for all services to the Bank or BankUnited or any of its direct or
indirect subsidiaries. Any payments by the Bank to Xx. Xxxxxxxx shall be applied
to offset any corresponding compensation or payment obligations of BankUnited.
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18. 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.
19. Entire Agreement, Modifications and Waiver. This Agreement
constitutes the entire agreement between the Bank and Xx. Xxxxxxxx with respect
to its subject matter and supersedes all prior negotiations, agreements,
understandings and arrangements, both oral and written, between the Bank and Xx.
Xxxxxxxx with respect to such subject matter including, but not limited to, any
employee manuals of the Bank or BankUnited. 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 (whether or not similar), nor
shall any such waiver constitute a continuing waiver. The failure of Xx.
Xxxxxxxx or the Bank to insist upon strict compliance with any provision hereof
shall not be deemed to be a waiver of such provision or any other provision
thereof.
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IN WITNESS WHEREOF, Xx. Xxxxxxxx and, pursuant to the authorization
from the Board, BankUnited Financial Corporation has executed this Agreement as
of the date first above written.
XXXXX XXXXXXXX BANKUNITED FSB
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
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Name:
Title:
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