AGREEMENT
This agreement ("Agreement") dated as of this 14th day of February,
2001 is by and between Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxxx X. Xxxx ("Ford").
WHEREAS, Ford owns, directly or indirectly, the following shares of
BankUnited Financial Corporation's Noncumulative Convertible Preferred Stock,
Series B (the "Preferred Stock") and Class B Common Stock (the "Class B Stock"):
5,000 Preferred Stock
90,875 Class B Stock
WHEREAS, Ford holds options to purchase from the Company 30,550 shares
of Class B Stock (the "Initial Options") as follows:
No. of Class B Stock Exercise Price Expiration Date
-------------------- -------------- ---------------
10,184 $3.317 2/20/01
20,366 $3.54 1/31/02
WHEREAS, Ford has independently determined to and is exercising the
Initial Options simultaneously with the execution of this Agreement;
WHEREAS, Camner wishes to purchase the 5,000 shares of Preferred Stock
and the 90,875 shares of Class B Stock that Ford presently owns and the 30,550
shares of Class B Stock that Ford is acquiring by exercise of the Options, and
Ford wishes to sell the 5,000 shares of Preferred Stock and 121,425 shares of
Class B Stock to Camner;
WHEREAS, Camner owns, directly or indirectly, shares of BankUnited
Financial Corporation Class A Common Stock (the "Class A Stock") in an amount in
excess of 80,875 shares;
WHEREAS, Ford has the right to purchase 338,100 shares of Class B
Stock, pursuant to various other stock option agreements (the "Other Stock
Option Agreements") as follows:
No. of Shares Exercise Price Expiration Date
------------- -------------- ---------------
27,600 $7.25 12/11/02
35,500 $7.25 12/13/03
40,500 $5.73 1/30/05
40,500 $5.73 9/30/05
45,500 $7.2375 11/14/06
5,000 $7.25 4/01/06
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No. of Shares Exercise Price Expiration Date
------------- -------------- ---------------
7,500 $7.25 7/18/06
45,500 $7.25 11/14/06
12,000 $7.25 5/12/07
3,000 $7.25 6/16/07
45,500 $7.25 10/27/07
5,000 $7.25 3/16/08
25,000 $7.25 10/14/08
WHEREAS, Ford and Camner have determined that it is in their respective
best interests that upon Ford's election, in her sole discretion, to exercise
her rights in whole or in part to acquire shares of Class B Common Stock
pursuant to any or all of the Other Stock Option Agreements, that Ford hereby
xxxxx Xxxxxx a right of first refusal to purchase all or any portion of such
shares of Class B Common Stock receivable upon exercise of such Other Stock
Option Agreements.
NOW THEREFORE, it is agreed as follows:
1. Initial Purchase and Sale; Purchase Price; Closing.
1.1 Purchase and Sale. Subject to the terms and conditions set
forth herein, at the Initial Closing (as defined below) Ford shall sell, assign,
transfer and deliver to Camner, and Camner shall purchase from Ford all of her
right, title and interest in and to the 5,000 shares of Preferred Stock and
40,550 shares of Class B Stock, (together, the "Initial Shares") free and clear
of all liens, claims, charges, pledges, security interests or other encumbrances
of any nature whatsoever, excluding any applicable legends or restrictions
required by U.S. securities laws ("Liens").
1.2 Purchase Price. In consideration of the sale, assignment,
transfer and delivery of the Initial Shares by Xxxx, Xxxx shall be entitled to
receive as the purchase price, $360,375 (the "Purchase Price"), by cashier's
check or wire transfer.
1.3 The Initial Closing. The consummation of the transactions
contemplated by Section 1 of this Agreement (the "Initial Closing") shall take
place simultaneously with the execution of this Agreement at the offices of
Camner, Xxxxxxx and Poller, P.A., 000 Xxxxxxxx Xxx, Xxxxx Xxxxxx, Xxxxxxx 00000,
or at such other time and place as the parties may mutually agree upon. At the
Initial Closing, Ford shall effect the sale of the Initial Shares, as herein
provided, by delivery to Camner of stock certificates representing the Initial
Shares, duly endorsed in blank for transfer and Camner shall effect the purchase
of the Initial Shares as herein provided, by delivery to Ford of the Purchase
Price as provided in Section 1.2 hereof. In addition, at the Initial Closing the
parties shall deliver to each other such other documents and instruments as each
party may reasonably request from the other party in order to consummate the
transactions contemplated herein.
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2. Exercise of Options. On the Initial Closing Date, Ford shall
take whatever steps are necessary to exercise the Initial Options simultaneously
with the execution of this Agreement.
3. Second Purchase and Sale; Purchase Price; Second Closing.
3.1 Second Purchase and Sale. Subject to the terms and
conditions set forth herein, at Camner's election and request, which shall take
place no sooner than six months and no later than seven months after the Initial
Closing, Ford shall sell, assign, transfer and deliver to Camner, and Camner
shall purchase from Ford, all of her right, title and interest in and to 80,875
shares of Class B Stock (the "Second Shares"), free and clear of Liens.
3.2 Purchase Price. In consideration of the sale, assignment,
transfer and delivery of the Second Shares by Ford, Camner shall sell, assign,
transfer and deliver to Ford 80,875 shares of Class A Stock, free and clear of
all Liens.
3.3 Second Closing. The consummation of the transactions
contemplated by Section 3 of this Agreement (the "Second Closing") shall take
place at a date to be selected by Camner which shall be no sooner than six
months and no later than seven months from the date of the Initial Closing, at
the offices of Camner, Xxxxxxx and Poller, P.A. or at such other time and place
as the parties may mutually agree upon. At the Second Closing, Ford shall effect
the sale of the Second Shares to Camner and Camner shall effect the sale of
80,875 shares of Class A Stock to Ford in the same manner as provided for the
sale of the Initial Shares in Section 1.3 hereof.
4. Right of First Refusal.
4.1 Right of First Refusal. Except as set forth in Schedule A,
Ford hereby grants Camner an exclusive right of first refusal to purchase any or
all shares of Class B Stock now owned or hereafter acquired by Ford, including
any shares of Class B Stock acquired by Ford pursuant to stock splits, stock
dividends or similar events, and the exercise of any of the Other Stock Option
Agreements (collectively, the "Additional Stock"). In the event that Ford
desires to sell, transfer or dispose of shares of such Additional Stock, Ford
will give Camner written notice of her intent to sell (each, a "Disposition
Notice"), which shall describe the number of shares of Additional Stock to be
disposed of (the "Subject Shares") and the manner of disposition, provided
however that no such Disposition Notice shall be sent and no sale shall be
consummated sooner than six months and 15 days after the Second Closing, nor
sooner than six months and fifteen days from any previous Disposition Notice.
4.2 Exercise of Rights. Camner shall notify Ford within two
business days of the date the Disposition Notice is received, whether he intends
to purchase the Subject Shares. If Camner elects to purchase any or all of the
Subject Shares, then the per share purchase price (the "Price Per Share") will
be the average of the high and low sale prices of the Class A Stock as quoted on
NASDAQ on the day prior to the closing of the purchase, or if no trades occur on
such day, on the last day that the Class A Stock was traded on NASDAQ prior to
the date of the closing of the
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purchase. Alternatively, at Camner's option, some or all of the purchase price
may be paid in Class A Stock, valued on a one for one basis with the Class B
Stock. The closing on the purchase will be the next business day after Camner
notifies Ford of his election to purchase the Subject Shares. If the Closing
does not occur on such date for any reason not caused by Ford, but does occur
within five business days thereafter, and the per share price (determined in the
manner set forth herein) on the day of the Closing is less than the per share
price on the third business day after the Disposition Notice, then Camner will
reimburse Ford for the difference in the per share price multiplied by the
number of Subject Shares. The procedures for the Exercise of Options and
Purchase/Sale of Additional Stock are set forth in Exhibit A.
4.3 Effect of Non-Exercise. In the event Camner declines to
purchase some or all of the Additional Stock, Ford agrees to convert any of the
Additional Stock into shares of Class A Common Stock prior to sale to a third
party. The right of first refusal shall be applicable each time that Ford
determines to sell any of the Additional Stock, including any of the Subject
Shares which Ford does not sell within 10 business days of the Notice, and
Camner's refusal to buy shall not negate his rights as to future purchases.
5. Grant of Irrevocable Proxy. Except with respect to those
shares set forth in Schedule A, Ford hereby irrevocably constitutes and appoints
Camner as her proxy, with full power of substitution, and grants Camner an
irrevocable proxy, coupled with an interest, to vote or take any action by
consent, in Camner's sole discretion, with respect to all shares of Class B
Common Stock or other securities now or hereafter held by Ford and subject to
this Agreement.
6. Restrictions on Transfer or Conversion of Class B Stock by
Ford.
6.1 Except as otherwise provided in this Agreement, or on
Schedule A, Ford will not sell, assign, transfer, pledge, hypothecate, or
otherwise encumber or dispose of in any way, including by conversion into Class
A Stock, all or any part of any interest in shares of Class B Stock now or
hereafter owned or held by Ford unless requested to do so by Camner by written
notice and any such sale, assignment, transfer, pledge, hypothecation or other
encumbrance or disposition or conversion (into Class A Stock) of Class B Stock
by Ford shall be null and void, and the Company shall notify the Transfer Agent
for its securities not to accept or recognize any transfer not in accordance
with this Agreement.
6.2 Restrictive Legends. Except as provided in Schedule A,
upon the execution of this Agreement, the certificates representing the shares
and other securities subject hereto shall be surrendered to the Company or its
transfer agent and registrar, and endorsed (in addition to any other applicable
endorsements or legends) substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE RESTRICTIONS IN AN AGREEMENT, DATED AS OF
FEBRUARY 14, 2001, BY AND BETWEEN XXXXXX X. XXXXXX AND
XXXXXXX X. XXXX. SUCH AGREEMENT GRANTS XXXXXX X. XXXXXX
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CERTAIN OPTIONS AND RIGHTS TO PURCHASE THE SECURITIES REPRESENTED
HEREBY, LIMITS OTHER TRANSFERS CONVERSIONS OR EXCHANGES OF SUCH
SECURITIES OR ANY INTEREST THEREIN, AND GRANTS XXXXXX X. XXXXXX AN
IRREVOCABLE PROXY COUPLED WITH AN INTEREST TO VOTE SUCH SECURITIES. A
COPY OF THIS AGREEMENT IS ON FILE IN THE REGISTERED OFFICE OF THE
COMPANY WHERE IT MAY BE INSPECTED. NO TRANSFER OR ENCUMBRANCE OF THE
SHARES REPRESENTED HEREBY OR ANY INTEREST THEREIN MAY BE MADE EXCEPT IN
ACCORDANCE WITH SUCH AGREEMENT."
In addition, the certificates may bear such additional legends as
Camner may reasonably require to effect this Agreement, including, without
limitation, legends required by, or appropriate with respect to the rules and
regulation of, any federal, foreign or other securities authorities. After
endorsement, the certificates shall be returned Ford who shall, subject to the
terms of this Agreement, otherwise shall be entitled to exercise all right of
ownership of such securities. All certificates for securities that are subject
to this Agreement hereafter newly issued or transferred during the term of this
Agreement shall bear similar legends.
6.3 Restrictions in Books and Records. A copy of this
Agreement shall be provided to the Company which shall maintain copies at its
registered and principal offices. The Company and its transfer agent and
registrar shall be instructed to restrict transfers of the securities covered
hereby and any interest therein to only those transfers expressly permitted
hereunder, and not to make any transfers of such securities or any interest
therein in any manner inconsistent herewith.
7. Termination. This Agreement shall terminate at such time as
Ford no longer owns any Class B Stock nor has any rights to purchase any Class B
Stock; provided, however, that it shall terminate upon a change in control (as
defined in the Other Stock Option Agreements) pursuant to which the Class B
Stock will be converted into cash.
8. Miscellaneous.
8.1 Notices. Any notice, request or other communication
required or permitted under this Agreement shall be in writing and shall be
delivered personally or sent by certified mail, return receipt requested,
postage prepaid, or sent by facsimile or prepaid overnight courier to the
parties at the addresses set forth below their names (or at such other addresses
as shall be specified by the parties by like notice).
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If to Camner:
Xx. Xxxxxx Xxxxxx
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
If to Ford:
Xxx. Xxxxxxx Xxxx
00000 X.X. 00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
8.2 Further Assurances. The parties shall deliver any and all
other instruments or documents required to be delivered pursuant to, or
necessary or proper in order to give effect to, the provisions of this
Agreement, including without limitation, all necessary stock powers and such
other instruments of transfer as may be necessary or desirable to transfer
ownership of the shares and to consummate the transactions contemplated by this
Agreement.
8.3 Entire Agreement. This Agreement contains every obligation
and understanding between the parties relating to the subject matter hereof and
supercedes all prior discussions, negotiations and agreements, if any, between
them, and none of the parties shall be bound by any representations, warranties,
covenants, or other understandings, other than as expressly provided or referred
to herein.
8.4 Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, legal representatives, successors and permitted assigns. No party
hereto may assign this Agreement or any rights hereunder, in whole or in part,
except that Buyer may assign this Agreement to any of its Affiliates; provided,
however, that any assignee shall assume the assignor's obligations hereunder,
and no such assignment shall release the assigning party from its obligations
hereunder without the prior written consent of the other parties hereto.
8.5 Stock Split, Stock Dividend, Recapitalization. In the
event that there is a change (or a record date has been established for a
change) in the number or kind of shares of Class A Stock or Class B Stock
(together the "Common Stock") issued and outstanding prior to the Initial
Closing, the Second Closing or Camner's exercise of his Rights of First Refusal
pursuant to Section 4, as a result of a stock split, stock dividend,
recapitalization, reclassification, reorganization or similar transaction with
respect to the outstanding Common Stock, then the Common Stock to be purchased
and sold by Camner and Ford and the prices for same shall be similarly adjusted.
8.6 Waiver and Amendment. Any representation, warranty, covenant, term
or condition of this Agreement which may legally be waived, may be waived, or
the time of
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performance thereof extended, at any time by the party hereto entitled to the
benefit thereof, and any term, condition or covenant hereof may be amended by
the parties hereto at any time. Any such waiver, extension or amendment shall be
evidenced by an instrument in writing executed on behalf of the appropriate
party. No waiver by any party hereto of its rights under any provision of this
Agreement shall constitute a waiver of such party's rights under such provisions
at any other time or a waiver of such party's rights under any other provision
of this Agreement. No failure by any party hereto to take any action against any
breach of this Agreement or default by another party shall constitute a waiver
of the former party's right to enforce any provision of this Agreement or to
take action against such breach or default or any subsequent breach or default
by such other party.
8.7 No Third Party Beneficiary. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give any
Person other than the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
8.8 Severability. In the event that any one or more of the
provisions contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect, and such invalid, void or unenforceable provision shall
be interpreted as closely as possible to the manner in which it was written.
8.9 Expenses. All expenses (including, without limitation,
legal fees and expenses, broker and finder fees, and fees and expenses of
accountants) incurred by each party in connection with the transactions
contemplated hereby will be borne by the party incurring such expense.
8.10 Headings. Article titles and headings to sections herein
are inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
8.11 Counterparts. This Agreement may be executed in two
counterparts, both of which shall be deemed an original but both of which
together shall constitute one and the same instrument.
8.12 Injunctive Relief. The parties acknowledge and agree that
the breach or threatened breach of a party's obligations hereunder may result in
irreparable damage to the nonbreaching party. Accordingly, the parties agree
that in the event of a breach or attempted breach of this Agreement, the
nonbreaching party shall be entitled to equitable relief including, without
limitation, a temporary restraining order, injunctive relief, specific
performance or other equitable remedies in addition to all other remedies
provided hereunder or available to the parties hereto at law or in equity.
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8.13 Governing Law. This Agreement has been entered into and
shall be construed and enforced in accordance with the laws of the State of
Florida without reference to the choice of law principles thereof.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Agreement as of the day and year first above written.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxx
-------------------------------------
XXXXXXX X. XXXX
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Schedule A
1. BankUnited Financial Corporation Stock Certificate #BUB0200 for 25,894
shares of BankUnited Class B Stock is being held as collateral by
Kislak National Bank in connection with two loans to Xxxxxxx X. Xxxx in
the amounts of $150,000 and $90,000. Part of the proceeds from the
Initial Closing will be used to pay off this loan, at which time the
shares represented by this Certificate shall be subject to all the
restrictions set forth in the Agreement.
2. The Stock Option which expires on December 11, 2002 is for the purchase
of a total of 36,500 shares of Class B Common Stock, including 11,500
shares which are not subject to any of the provisions of this
Agreement. The right to purchase the remaining 27,000 shares is subject
to this Agreement.
3. Shares held by Gruntal & Co., LLC in an XXX account will not be subject
to Section 6.2.
Exhibit A
Procedures For Exercise of Options and Purchase/Sale of Additional Stock
1. No later than the next business day following notification of his
election to purchase the Subject Shares, Camner will order that
registered ownership of the shares of Class A Stock to be paid as the
purchase price to Ford be transferred on the records of BankUnited
Financial Corporation's (the "Company's") transfer agent, and order
delivery of physical or electronic evidence of Ford's ownership to
Ford's designated brokerage account. Camner will advise the Company and
the transfer agent in writing of the date of transfer of the Class A
Stock (the "Date of Transfer").
2. Ford will provide written notice to the Company exercising the options
for the Subject Shares, and identifying the options by optionee, date
of grant, number of shares, class of stock and exercise price. The
notice shall also include an authorization and release, in form
satisfactory to the Company, authorizing the Company to issue the
Subject Shares registered to Camner's ownership and deliver such shares
to Camner, and releasing the Company from any liability for such
issuance and delivery.
3. On the same date that Ford gives the Company notice of her option
exercise, Camner will deliver a guarantee to the Company, in a form
satisfactory to the Company, guaranteeing payment of Ford's option
exercise price, including any federal income tax, social security and
medicare tax payments required.
4. The Company will instruct its transfer agent in writing to issue the
Subject Shares registered to Camner's ownership as of the Date of
Transfer, and deliver the certificates for the Subject Shares to
Camner. The instructions shall include Camner's name, address, tax
identification number and delivery instructions.
5. The full option exercise price, including any federal income tax,
social security and medicare tax payments required, shall be paid to
the Company as soon as possible after the exercise of the options, but
in no event later than the earlier of either 7 business days after the
exercise of the option, or the last business day of the calendar
quarter during which the options are exercised.
6. Camner will hold the Company harmless from and against any claims,
suits or actions arising as a result of its actions, inactions or
omissions in regard to these procedures.
Agreed to:
BankUnited Financial Corporation
By:/s/ Xxxxxxxx Xxxxx
--------------------------------------------------
Addendum to
Agreement Dated February 14, 2001
This Addendum is made by and between Xxxxxx X. Xxxxxx and Xxxxxxx X.
Xxxx and is hereby attached to and incorporated by reference into the Agreement
dated as of the 14th day of February, 2001 (the "Agreement") by and between
Camner and Ford. This Addendum is effective as of February 14, 2001 (the
"Effective Date").
WHEREAS, Ford is selling Camner, at the Initial Closing, 5,000 shares
of Noncumulative Convertible Preferred Stock, Series B, of which 2,500 shares
(the "Series B XXX Shares") are held in Xxxx'x XXX account; and
WHEREAS, in order to avoid a taxable transaction under the rules
governing XXX accounts, the cash purchase price of the Series B XXX Shares must
be paid directly by Camner to Xxxx'x XXX account; and
WHEREAS, the Agreement provides for a Second Closing, if Camner elects
to purchase additional shares, at which time Ford will sell Camner additional
shares of stock, including shares of Class B Common Stock held in Xxxx'x XXX
account (the "Class B XXX Shares"), for a purchase price payable in shares of
Class A Common Stock;
NOW, THEREFORE, BE IT MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS:
1. Notwithstanding any provisions of the Agreement to the contrary
$28,125 (Twenty-eight thousand one hundred twenty-five Dollars) of the total
purchase price of $360,375 payable by Camner at the Initial Closing shall be
paid by Camner to Xxxx'x XXX account.
2. In the event that Camner inadvertently pays Ford or any account of
Ford other than her XXX account, any portion of the purchase price of the Series
B XXX Shares, Ford shall immediately return such payment to Camner for payment
by Camner directly to Xxxx'x XXX account.
3. Notwithstanding any provision of the Agreement to the contrary, if
Camner elects to purchase additional shares, at the Second Closing Camner shall
deliver 4,338 shares of the total purchase price of 80,875 shares of Class A
Common Stock to Xxxx'x XXX account in payment of the purchase price for the
Class B XXX Shares.
4. All terms used but not defined herein shall have the meanings
specified in the Agreement.
IN WITNESS WHEREOF, the parties hereto have each executed and delivered
this Addendum as of the Effective Date hereof.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxx
-------------------------------------
XXXXXXX X. XXXX
