Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 21st day of August, 2002 by and between Xxxxxx Xxxxx (hereinafter the
"Executive") and BankUnited Financial Corporation, a Florida corporation
("BankUnited" or the "Company").
Recitals
A The Boards of Directors of BankUnited (referred to herein as the
"Board") have determined that it is in the best interests of the Company and its
shareholders to obtain the services of the Executive.
B The Company, on behalf of itself and its shareholders, wish to engage
the services of Executive.
C The Company is concerned that in the event of a possible or threatened
Change of Control (as hereinafter defined), uncertainties necessarily arise and
the Executive may have concerns about his employment status and
responsibilities, and may be approached by others offering competing employment
opportunities, and the Company therefore desires to provide the Executive
assurances as to the continuation of his employment status and responsibilities
in such event. The Company further desires to assure that, if a possible or
threatened Change of Control should arise and the Executive should be involved
in deliberations or negotiations in connection therewith, the Executive would be
in a secure position to consider and participate in such transaction as
objectively as possible in the best interests of the Company and, to this end,
desires to protect the Executive from any direct or implied threat to his
financial well-being.
D The Board has determined that this Agreement will reinforce and
encourage the Executive's attention and dedication to the Company.
E The Executive is willing to make his services available to the Company
on the terms and conditions hereinafter set forth, but desires assurance that in
the event of such a threatened or actual Change of Control he will continue to
have the employment status and responsibilities he could reasonably expect
absent such event and, in the event of his termination or a Change of Control,
he will have fair and reasonable severance protection on the basis of his
service to the Company at that time.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions. In addition to the words and terms defined elsewhere
in this Agreement, 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) "Date of Termination" means the date of receipt of a Notice of
Termination or any later date specified therein, as the case may be; provided,
however, that if the
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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.
(b) "Disability" means any physical or mental condition that prevents
the Executive from performing the essential function of his position for at
least three (3) 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, and
that it cannot reasonably accommodate as defined by law 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 as of the Disability Effective Date, provided that the
Executive shall not have returned to full-time performance of the Executive's
duties prior to the Disability Effective Date. Any subsequent different
Disability, shall not be deemed a continuation of a prior Disability and, the
determination of time periods for the purposes of this provision shall
recommence. Any dispute shall be resolved by arbitration as provided in Section
24.
(c) "Disability Effective Date" means the date thirty (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.
(d) "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, sets forth circumstances claimed to provide a
basis for termination of the Executive's employment for Cause in reasonable
detail and includes the resolution of the Board regarding the termination of the
Executive's employment for Cause, and (iii) if the Date of Termination is other
than the date of receipt of such notice, specifies the termination date.
(e) "Change of Control Payment" means a lump sum cash payment to the
Executive by the Company in an amount which equals the greater of either: (i)
two (2) times the Executive's Base Salary for the year in which the termination
occurs plus two (2) times the amount equal to the last Annual Bonus awarded to
the Executive during the year prior to a Change of Control, or (ii) Executive
Base Salary from the date of the Change of Control through the remainder of this
Contract's Term.
(f) "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, stock options, stock grants, disability insurance plan, and
group life insurance plans.
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2. Employment.
2.1 Employment and Term. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to continue to serve the Company, on
the terms and conditions set forth herein, for the period commencing immediately
upon the effective date of the Executive's resignation from his current
position, which date shall not be sooner than the close of business on September
20, 2002 nor later than the beginning of business on September 23, 2002
(hereinafter the "Commencement Date") and expiring September 30, 2007 (the
"Term") unless sooner terminated as hereinafter set forth.
2.2 Position and Duties of Executive. The Executive shall serve as
the President, Chief Operating Officer and Chief Administrative Officer ("COO")
of BankUnited and President and COO of BankUnited, FSB and a member of the Board
of Directors of BankUnited and BankUnited, FSB, so long as he continues as the
President and COO. During the Term of employment, the Executive shall diligently
perform all services as may be reasonably assigned to him by the CEO, Board or
its Chairman and shall exercise such power and authority as may from time to
time be delegated to him by the CEO, Board or its Chairman. The Executive shall
be required to report solely to, and shall be subject solely to the supervision
and direction of, the CEO, Board or its Chairman and no other person or group
shall be given authority to supervise or direct Executive in the performance of
his duties. The Executive shall devote substantially all his working time and
attention (other than during weekends, holidays, approved vacation periods, and
periods of illness or approved leaves of absence) to the business and affairs of
the Company, render such services efficiently and to the best of his ability,
and use his best efforts to promote the interests of the Company.
2.3 Place of Performance. In connection with his employment by the
Company, the Executive's principal place of employment shall be the Company's
executive offices in Florida.
3. Compensation.
3.1 Base Salary. The Executive shall receive a base salary of
$400,000 (the "Base Salary") per year during the Term of this Agreement, with
such Base Salary payable in installments consistent with the Company's standard
payroll practice for executives. Prior to each November, commencing in 2003 and
occurring during the Term, the Board shall review the Executive's annual rate of
salary and may, in its discretion, approve an increase of the Executive's Base
Salary for the ensuing year. The first and last year shall be prorated based on
the number of months in such year. In addition to salary, the Executive may
receive other cash or stock compensation from the Company for services rendered
hereunder at such times, in such amounts and on such terms and conditions as the
Board, in its discretion, may determine from time to time continuing throughout
the Term. The Base Salary shall not be decreased unless the Executive is not
performing his duties and responsibilities in all material respects to the
satisfaction of the Board. Any increase in Base Salary shall not limit or reduce
any obligation to the Executive under this Agreement. The Executive shall not
separately receive directors fees. All disputes as to Base Salary shall be
resolved by Arbitration as provided in paragraph 24.
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3.2 Annual Bonus. The Executive may be entitled to a cash bonus (the
"Annual Bonus") for each year of the Term (for purposes of this Agreement a
"year" shall mean the calendar year). The first and last "year" shall be
prorated based on the number of months of employment in such year. The Annual
Bonus for a year shall be based upon merit during such year (taking into account
various factors including net income, assets and deposit growth, performance,
and such other factors as may be deemed appropriate by the CEO, Compensation
Committee and the Board) and shall be determined, after recommendation by the
Chairman, by the Compensation Committee of the Board (or the full Board in the
absence of such Committee or a replacement therefor) in their sole discretion.
The range of Annual Bonus shall be performance based determined in accordance
with the standard practices of the Company's Compensation Committee.
4. Additional Benefits.
4.1 Expense Reimbursement. During the Term, upon the submission of
supporting documentation by the Executive in form sufficient to permit deduction
thereof under applicable tax law (but without regard to actual deductibility),
the Company shall promptly reimburse the Executive for all reasonable expenses
actually paid or incurred by the Executive in the course of and pursuant to the
business of the Company, including expenses for entertainment and all travel and
living expenses while away from home on business or at the request of the
Company, provided that such expenses are incurred and accounted for in
accordance with the Company's regular policies and procedures.
4.2 Other Benefits. The Company shall provide the Executive the
standard benefits provided to other senior executives, including, major medical
and hospitalization insurance coverage, group disability and group life
insurance for the Executive (collectively, the "Policies"), which Policies the
Company shall keep in effect at its sole expense throughout the Term. To the
extent any Policies have an eligibility period, Executive may maintain his
existing equivalent coverage under COBRA and the Company shall reimburse him for
that expense until the eligibility period is satisfied. In addition to the group
disability insurance coverage provided by the Company to its executive
employees, the Company shall pay to the Executive $5,000 annually to reimburse
him for the cost (or a portion of the cost) of an individual disability policy
for a term of five years, without deduction for any payments provided under the
Company's group disability insurance coverage. In addition to group life
insurance the Company shall maintain on the life of the Executive a five year
term life insurance policy in the amount of $2,500,000, the beneficiary of which
shall be designated by the Executive. If the life insurance policy is portable
and fully transferable, the Company agrees to make reasonable efforts to have
the policy transferred to the Executive upon his termination, at which time the
Executive will be fully responsible for all premiums and maintenance of such
policy. The Executive represents to the Company that he is a "healthy,
non-smoker." The Executive understands that the Company's obligation to purchase
the life insurance policy described above ceases if the Executive's
representation is false or misleading. Nothing paid to the Executive under any
plan or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the Base Salary or Annual Bonus payable to the Executive
pursuant to this Agreement.
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4.3 Automobile Allowance. During the Term, the Company shall provide
Executive with an automobile allowance of six hundred dollars ($600) per month,
which amount is intended to compensate Executive for wear and tear and reimburse
the Executive for all costs of gasoline, oil, repairs, maintenance, insurance
and other expenses incurred by Executive by reason of the use of Executive's
automobile for Company business from time to time. The amount of this allowance
will be reviewed by the Company and the Executive on each anniversary from the
Commencement Date during the Term, and increased prospectively as is necessary
to compensate and reimburse the Executive for such wear and tear and costs.
4.4 Vacation. The Executive shall be entitled to four (4) weeks
vacation per year, said vacation to be scheduled so as not to materially
interfere with the performance by the Executive of his duties pursuant to this
Agreement.
4.5 Club Membership. The Company shall pay initiation fees (not to
exceed $45,000. at LaGorce Country Club and dues for the Executive's membership
at La Gorce Country Club and Riviera Country Club, and such luncheon clubs as he
deems appropriate for the discharge of his duties hereunder. The membership at
LaGorce Country Club shall be the property of the Company; and be in the
Company's name if possible.
4.6 Stock Option Compensation. Executive shall be granted options
within sixty (60) days of the Commencement of the term of this Agreement to
purchase 30,000 shares of the Company's Class A Common Stock, at the market
price of such stock at the date of grant, one-fifth (1/5) which shall vest each
year, subject to performance goals established by the Compensation Committee.
Executive shall also be eligible to participate in stock option, incentive
compensation and other plans providing opportunities to receive additional
compensation.
4.7 Working Facilities and Support Staff. The Company shall furnish
the Executive with an office or offices, of a size and with furnishings and
other appointments, and secretarial and such other facilities and support
services suitable to his position and adequate for the performance of his duties
hereunder including, but not limited to, appropriate internet and news service
subscriptions, cellular telephones, computers ("palm," "lap top" or other
appropriate computer/cellular devices).
4.8 Securities Grants. At the first meeting of the Board of Directors
of the Company following Commencement Date, Executive shall receive the
following (which has already been approved by the Compensation Committee):
a) A grant of a number of shares based on the closing price bid
of the Company's Class A Common Stock on the date of grant, having a value of
$400,000.00 ownership of which is to vest in equal amounts over five years. (As
these annual grants vest, they become "Vested Benefits" for purposes of this
Agreement);
b) Five annual grants on the ensuing five anniversary dates of
this Agreement of a number of shares of the Company's Class A Common Stock
having a value on
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the date of each grant of $187,500.00 based on the closing price of the Class A
Common Stock as of the date of grant, ownership of which is to vest in equal
amounts over five years from the date of grant. (As the annual grants vest, they
become "Vested Benefits" for purposes of this Agreement.) The Company at its
election may satisfy these grants with an equivalent cash payment.
c) The shares granted pursuant to subparagraph (a) and (b)
shall not be delivered to the Executive, but, rather shall be placed in a "rabbi
trust" so as to defer the federal income tax to the Executive. A "rabbi trust"
shall be utilized. Among other provisions, it shall contain provisions that the
Executive shall receive all of the trust property within thirty (30) days
following any of the following: the Executive's termination under Sections 5.2
or 5.3, or an event which is a Change of Control as defined in Section 6.
d) (i) In the event of a Change of Control, all grants
previously not vested shall become fully vested and if any grant has not been
made as provided in (a) or (b) above there shall be granted to the Executive a
sufficient number of shares to satisfy the requirements of such provisions based
on the closing price bid of the Class A Common Stock on the date of the grant.
(ii) In event this Agreement terminates under 5.3
(Termination Without Cause) or under 5.2 as a result of disability, all grants
previously not vested shall continue to vest in accordance with the vesting
schedule provided in (a) and (b) above, and if any grant has not been made as
provided in (b) above, there shall continue to be granted to the Executive a
sufficient number of shares to satisfy the requirements of such provision based
on the closing price bid of the Class A Common Stock on the date of the grant
which shall continue to vest in accordance with the vesting schedule provided in
(b) above. The Company, at its election, may satisfy one or more the grants with
an equivalent cash payment.
(iii) In the event this Agreement terminates under 5.2 as a
result death, all grants not vested as of the date of death shall lapse and no
further grants shall be made to satisfy the provision of Section (a) and (b).
4.9 Annuity Payment. Executive shall be provided with an annuity to
be purchased on his fifty-fifth (55th) birthday that shall provide monthly
benefits of $950. beginning on the Executive's sixty-fifth (65th) birthday and
for the remaining life of the Executive. To the extent possible, the annuity
described herein shall be held in a manner so as to defer the federal income tax
to the Executive.
4.10 Indemnification and Insurance.
(a) During the Term of this Agreement, the Company shall cause
the Executive to be covered by and named as an insured under any policy or
contract of insurance obtained by it to insure its directors and officers
against personal liability for acts or omissions in connection with service as
an officer or director of the Company or service in other capacities at the
request of the Company. The coverage provided to the Executive pursuant to this
section
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4.10 shall be of the same scope and on the same terms and conditions as the
coverage (if any) provided to other officers or directors of the Company.
(b) To the maximum extent permitted under applicable law, during
the Term of this Agreement and for a period of 3 years thereafter, the Company
shall indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Company or any subsidiary or affiliate thereof.
5. Termination.
5.1 Termination for Cause. Notwithstanding anything contained herein
to the contrary, this Agreement may be terminated by the Company for Cause. As
used in this Agreement, "Cause" shall mean (i) any action or omission or failure
of the Executive which constitutes a material breach of this Agreement,
including without limitation failing to carry out his duties and
responsibilities in accordance with Section 2.2 (if, however, the Board
determines that it is an action, omission or failure which can be cured, the
Company agrees to provide one cure period of sixty (60) days after receipt by
the Executive of specific written notice of the issue. If the issue is not cured
within the sixty (60) day period, or is of a nature that the Board determines
cannot be cured, the Executive will be terminated for cause as specified in a
Notice of Termination); (ii) the Executive engages in an act(s) of personal
dishonesty, incompetence, or willful misconduct in connection with his
employment, the performance of services or handling the affairs of the Company
or BankUnited, FSB; (iii) the conviction of Executive for, or a plea of guilty
or nolo contendere to, a criminal act which is a felony, or which is a
misdemeanor involving theft, dishonesty or moral turpitude; (iv) the Executive
breaches a fiduciary duty owed to the Company involving personal profit,
intentional failure to perform stated duties, or which could seriously prejudice
the interest of the Company, BankUnited, FSB, its depositors, or shareholders;
or (v) the Executive's breach or willful violation of any law, rule, regulation,
corporate policy (other than traffic violations or similar non-material
offenses), or final cease and desist order in connection with his performance of
services for the Company. An express termination by the Company for reasons
other than those included above or which otherwise does not fall within another
part of section 5, will be considered a termination without cause under
paragraph 5.3. All disputes shall be resolved by Arbitration as provided in
Section 24.
5.2 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 Disability, the Company shall pay to the Executive or his
beneficiaries, as the case may be, (i) any compensation or other obligations
accrued for periods prior to the Date of Termination, all of which shall be paid
within fifteen (15) days after the Date of Termination, (ii) six (6) months of
Base Salary, all of which shall be paid in installments consistent with the
Company's payroll practice for executives, and shall implement the provisions
for the Executive's Vested Benefits as of the Date of Termination. If
Termination is due to the death of the Executive, the Company shall, within
fifteen (15) days after the Date of Termination, pay to the Executive's estate
or beneficiaries, as the case may be, any unpaid Base Salary, Annual Bonus and
benefits accrued
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for periods prior to the Date of Termination, or, if an alternative beneficiary
is designated in proper legal form, the payments and benefits shall be paid to
said designated beneficiary. In addition, the life insurance proceeds from the
policies described in this Agreement shall be paid to his personal
representative or such other persons as the Executive may have designated in
writing.
5.3 Termination Without Cause. At any time the Company shall have the
right to terminate Executive's employment hereunder by written notice to
Executive; provided, however, that the Company shall (i) pay to Executive any
unpaid Base Salary, and benefits and amounts due under the programs described in
Sections 4 up to the Date of Termination, (ii) continue to pay Executive's Base
Salary and benefits, described for the balance of the then effective Term
without extension, and (iii) implement the provisions for the Executive's Vested
Benefits as of the Date of Termination. The Company shall be deemed to have
terminated the Executive's employment pursuant to this Section 5.3 if such
employment is terminated by the Company without Cause. The Company and the
Executive hereby stipulate that the Company may condition the payment and
delivery of the amounts specified in clause (ii) of the first sentence of this
Section 5.3 on the receipt of the Executive's resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Company, BankUnited, FSB or any subsidiary or affiliate of either
of them and gives the Company a full release of all then existing claims under
this Agreement. Any disputes shall be resolved by Arbitration as provided in
Section 24.
5.4 Resignation. In the event Executive resigns other than upon
written request of the Company, Executive shall have not further right to any
payments or grants due under this Agreement and all Executives' rights and
benefits under this Agreement shall terminate. A termination of this Agreement
under Sections 5.1, 5.2, or 5.3 shall not be considered a "resignation" under
Section 5.4 unless specifically agreed to in writing by the Executive and the
Company.
6. Change of Control.
6.1 Change of Control. A "Change of Control" shall be deemed to have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(a) any person, as defined in Section 3(a)(9) of the Securities
Exchange Act of 1934 ("Exchange Act"), as such term is modified in Sections
13(d) and 14(d) of the Exchange Act, is or becomes the beneficial owner (as
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 51% or more of the
combined voting power of the Company's then outstanding voting securities (other
than (A) any employee plan established by any "Corporation" [which for these
purposes shall be deemed to be the Company and any corporation, association,
joint venture, proprietorship or partnership which is connected with the Company
either through stock ownership or through common control, within the meaning of
Sections 414(b) and (c) and 1563 of the Internal Revenue Code of 1986, as
amended], (B) the Company or any of its affiliates (as
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defined in Rule 12b-2 promulgated under the Exchange Act), (C) an underwriter
temporarily holding securities pursuant to an offering of such securities, (D) a
corporation owned, directly or indirectly, by stockholders of the Company in
substantially the same proportions as their ownership of the Company or (E)
Xxxxxx X. Xxxxxx or any member(s) of his family or an entity, person, or group
acting in concert with him or his family or on his behalf.
(b) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than (A) a merger
or consolidation that would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit plan
of any Corporation, at least 51% of the combined voting power of the voting
securities of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the beneficial owner (as
defined in clause (a) above), directly or indirectly, of voting securities of
the Company or of the surviving entity of such merger or consolidation or any
parent thereof representing 51% or more of the combined voting power of the
Company's then outstanding voting securities or the Company or any surviving
entity or parent (other than Xxxxxx X. Xxxxxx or any member(s) of his family or
an entity, person, or group acting in concert with him or his family or on his
behalf); or
(c) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets, other than a sale
or disposition by the Company of all or substantially all of the Company's
assets to an entity, at least 75% of the combined voting power of the voting
securities of which are owned by persons in substantially the same proportions
as their ownership of the Company immediately prior to such sale.
6.2 Payments Upon a Change of Control.
(a) The Company shall, following the Change of Control, pay the
Executive the Change of Control Payment which payment shall be made the earlier
of six (6) months from the occurrence of a Change of Control or the acquiring
entity's termination of the Executive; and
(b) The Executive shall have the right, but not the obligation,
to resign and the Company shall pay the Executive any Base Salary, or other
benefits accrued for dates prior to the date of resignation and implement the
provisions of the Executive's Vested Benefits; provided, however, that the
Executive must remain in the employ of the acquiring entity for a period of time
not to exceed six (6) months if the acquiring entity so desires; and
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6.3 Arrangements Not Exclusive or Limiting. The specific arrangements
referred to herein are not intended to exclude or limit the Executive's
participation in other benefits available to executive personnel generally,
or to preclude or limit other compensation or benefits as may be authorized
by the Board of the Company at any time, or to limit or reduce any
compensation or benefit to which the Executive would be entitled but for
this Agreement.
7. Gross-Up of Change of Control Payments (if applicable).
(a) This Section shall apply if Executive's employment is
terminated upon or following a Change of Control as defined in Section 6 of this
Agreement. If this Section applies, then, for any taxable year, the Executive
shall be liable for the payment of an excise tax under section 4999 of the Code
with respect to any payment in the nature of compensation made by the Company,
the Bank or any direct or indirect subsidiary or affiliate of the Company or the
Bank to (or for the benefit of) the Executive, the Company shall pay to the
Executive an amount equal to X determined under the following formula:
X = E x P
-------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M]
-----
where
E = the rate at which the excise tax is assessed under section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section 7;
FI = the highest marginal rate of income tax applicable to the
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and local laws
for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to
the Executive under the Code for the taxable year in question.
With respect to any payment in the nature of compensation that is made to
(or for the benefit of) the Executive under the terms of this Agreement, or
otherwise, and on which an excise tax under section 4999 of the Code will be
assessed, the payment determined under this Section 7(a) shall be made to the
Executive on the earlier of (i) the date the Company, the Bank or any direct or
indirect subsidiary or affiliate of the Company or the Bank is required to
withhold such tax, or (ii) the date the tax is required to be paid by the
Executive.
(b) Notwithstanding anything in this Section 7 to the contrary, in the
event that the Executive's liability for the excise tax under section 4999 of
the Code for a taxable year is subsequently determined to be different than the
amount determined by the formula (X + P) x E, where X, P and E have the meanings
provided in Section 7(a), the Executive or the Company, as
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the case may be, shall pay to the other party at the time that the amount of
such excise tax is finally determined, an appropriate amount, plus interest,
such that the payment made under Section 7(a), when increased by the amount of
the payment made to the Executive under this Section 7(b) by the Company, or
when reduced by the amount of the payment made to the Company under this Section
7(b) by the Executive, equals the amount that should have properly been paid to
the Executive under Section 7(a). The interest paid under this Section 7(b)
shall be determined at the rate provided under section 1274(b)(2)(B) of the
Code. To confirm that the proper amount, if any, was paid to the Executive under
this Section 7, the Executive shall furnish to the Company a copy of each tax
return which reflects a liability for an excise tax payment made by the Company,
at least 20 days before the date on which such return is required to be filed
with the Internal Revenue Service.
(c) Notwithstanding the provisions of Sections 7(a) and (b) above, in the
event that the Executive shall be required to pay any additional amount of
excise tax under section 4999 of the Code, or any successor to such section, or
under any similar federal, State or local tax provision in connection with his
receipt of payment in the nature of compensation from the Company, the Bank or
any direct or indirect subsidiary or affiliate of the Company or the Bank to (or
for the benefit of) the Executive, the Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment ") in an amount such that, after payment
by the Executive of all taxes (and any interest or penalties imposed with
respect to such taxes) and the excise tax under the Code and/or State and local
tax provision imposed upon the Gross-Up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the excise tax imposed by the Code or any State
or local tax provision upon such compensation. For purposes of this paragraph
7(c), the term "taxes" shall include, but not be limited to, income taxes and
the Executive's share of any employment taxes.
(d) This section shall not apply to any entitlement to stock options,
stock grants, or other securities of the Company.
8. Regulatory Considerations.
Notwithstanding anything herein to the contrary, any payments to
Executive by BankUnited, 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. ss. 1828(k) and any regulations promulgated
thereunder.
Executive acknowledges that, as a result of recent corporate
responsibility laws enacted, including the Xxxxxxxx-Xxxxx Act, employment
contracts with executives of publicly traded companies may have to be modified
to bring their agreement into conformity with the law and the Executive agrees
to cooperate in all reasonable respects and consistent with other high level
executives.
9. Non-Competition.
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9.1 The Executive acknowledges that during the Term of this
Agreement, he will learn or be privy to valuable confidential business
information, and he will develop and cultivate on behalf of BankUnited
substantial relationships with past, present and prospective business customers
of BankUnited. During the term of this Agreement with BankUnited, and
thereafter, Executive 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 BankUnited.
9.2 The Executive acknowledges that the confidentiality of the
protected information with which Executive has been or may become privy is
essential and proprietary to BankUnited and is owned and shall continue to be
owned by BankUnited. The Executive agrees that at the termination of his
employment, for whatever reason, he will return to 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 a period of eighteen
(18) months thereafter within all counties where BankUnited, FSB or its
subsidiaries have branches or offices, including any extension, the Executive
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 BankUnited, in any respect.
9.4 During the Term of this Agreement and for a period of eighteen
(18) months thereafter, Executive shall not, except if this Agreement is
terminated as a result of a Change of Control:
(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 (6) 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 which solicitation is for or on behalf of any
entity engaged in or seeking to be engaged in BankUnited's banking or financial
service business, or in direct competition with BankUnited.
(c) In the event of a violation of the provision of this
Section, the Executive's rights to receive grants of the Company's Class A
Common Stock shall terminate and no additional shares shall vest or be granted
as provided in paragraph Section 4.8
(d) The Executives direct or indirect ownership in Casita
Mortgage Co. during its liquidation period shall not be deemed a violation of
this Agreement.
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9.5 Executive and BankUnited 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 (save only for the 18
month limitation set forth in paragraph 9.3) 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 542.335 (2000) or any
other Florida law. For purposes of this non-competition provision, the Executive
shall be deemed retained by BankUnited during any period of time in which he
receives compensation from BankUnited or its successors.
9.6 The Executive acknowledges that Section 9 is reasonably necessary
to protect the business interest of the Company and that the provisions of
Section 2 and Section 9 are the essence of this Agreement for BankUnited and the
Executive agrees that if he engages in activities prohibited by Section 9,
irreparable harm to BankUnited will likely result, for which a remedy in the
form of damages may not be ascertainable. Under such circumstances, the
Executive acknowledges that 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 16.
This section shall not limit any other legal or equitable remedies BankUnited or
its successors may have against the Executive for violation of this Agreement.
The prevailing party in any action to enforce Section 9 of this Agreement shall
be entitled to attorney's fees and costs.
10. Representation By the Executive. The Executive represents and warrants
as of the Commencement Date, that he is not a party to any agreement, contract
or understanding, whether of employment or otherwise, or subject to any
governmental restriction, which would in any way restrict or prohibit him from
undertaking or performing employment with the Company in accordance with the
terms and conditions of this Agreement. The Executive further represents and
warrants to the best of his knowledge as of the Commencement Date, that he is
physically and mentally capable of performing all the essential function of the
job and all duties reasonably assigned to him for the entire term of this
Agreement.
11. 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. In the event Section
162(m) of the Internal Revenue Code of 1988 shall be applicable to Executives'
compensation, the Executive shall cooperate with the Company to restructure his
compensation so as it to be fully deductible for income tax purposes; provided,
however, such cooperation shall be on such terms, if any, as both the Executive
and the Company agree, both utilizing good faith efforts to structure payments
in such a manner that the Executive's total compensation, on a present value
basis, is not diminished.
12. Attorneys' Fees. The Company agrees to pay such reasonable attorneys'
fees (not to exceed $15,000.00) as are incurred by the Executive with respect to
advice and counsel concerning or related to the negotiation and preparation of
this Agreement.
13. Enforcement Costs Upon a Change of Control. The Company is aware that
upon the occurrence of a Change of Control, the Board of Directors or a
stockholder of the Company
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may then cause or attempt to cause the Company to refuse to comply with its
obligations under Section 6 of this Agreement, or may cause or attempt to cause
the Company to institute, or may institute, litigation seeking to have Section 6
of this Agreement declared unenforceable, or may take, or attempt to take, other
action to deny the Executive the benefits intended under Section 6 of this
Agreement. In these circumstances, the purpose of this Agreement could be
frustrated. It is the intent of the parties that the Executive not be required
to incur the legal fees and expenses associated with the protection or
enforcement of his rights under Section 6 of this Agreement by arbitration,
litigation or other legal action because such costs would substantially detract
from the benefits intended to be extended to the Executive hereunder, nor be
bound to negotiate any settlement of his rights hereunder under threat of
incurring such costs. Accordingly, if at any time after the Commencement Date,
it should appear to the Executive that the Company is or has acted contrary to
or is failing or has failed to comply with any of its obligations solely under
Section 6 of this Agreement for the reason that it regards this Agreement to be
void or unenforceable or for any other reason, or in the event that the Company
or any other person takes any action to declare Section 6 of this Agreement void
or unenforceable, or institutes arbitration, litigation or other legal action
designed to deny, diminish or to recover from the Executive the benefits
provided or intended to be provided to him under Section 6, and the Executive
has acted in good faith to perform his obligations under this Agreement, the
Company irrevocably authorizes the Executive from time to time to retain counsel
of his choice at the expense of the Company to represent him in connection with
the protection and enforcement of his rights under Section 6. The reasonable
fees and expenses of counsel selected from time to time by the Executive as
herein above provided shall be paid or reimbursed to the Executive by the
Company on a regular, periodic basis upon presentation by the Executive of a
statement or statements prepared by such counsel in accordance with its
customary practices. Counsel so retained by the Executive may be counsel
representing other officers or key executives of the Company in connection with
the protection and enforcement of their rights under similar agreements between
them and the Company, and, unless in his sole judgment use of common counsel
could be prejudicial to him or would not be likely to reduce the fees and
expenses chargeable hereunder to the Company, the Executive agrees to use his
best efforts to agree with such other officers or executives to retain common
counsel.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, and applicable to contracts
entered into and to be performed entirely within the State of Florida.
15. Non-Alienation. The Executive 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 the Executive lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or in
the subject matter hereof.
16. 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:
14
If to the Company:
Xxxxxx X. Xxxxxx, Chairman
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
If to the Executive:
Xxxxxx Xxxxx
0000 X.X. 00 XX.
Xxxxx, XX 00000
With a Copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Gutter Xxxxxxxx & Xxxxxx
100 W. Cypress Creek Road, Suite 900
Ft. Xxxxxxxxxx, 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.
17. Guarantee. BankUnited hereby agrees to guarantee the payment by
BankUnited, FSB of any benefits and compensation to which Executive is or may be
entitled to under the terms and conditions of the Agreement effective as of the
21st day of August, 2002 between the Bank and Executive, a copy of which is
attached hereto as Exhibit A ("Bank Agreement").
18. 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.
19. Successors; Binding Agreement.
19.1 The Company shall require any successor, whether direct or
indirect to all or substantially all of the business or assets of the Company
whether by purchase, merger, consolidation or otherwise, prior to or
contemporaneously with such acquisition, by agreement in form and substance
reasonably satisfactory to the Executive and his legal counsel, to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such acquisition had taken
place (to the extent not previously performed by the Company). As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any such
successor which executes and delivers the agreement provided for in this Section
19.1 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
15
19.2 This Agreement shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
19.3 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.
20. 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.
21. Entire Agreement, Modifications and Waiver. This Agreement constitutes
the entire agreement between the Company and the Executive with respect to its
subject matter and supersedes all prior negotiations, agreements, understandings
and arrangements, both oral and written, between the Company and the Executive
with respect to such subject matter including, but not limited to, any employee
manuals of the Company. 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 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 thereof.
22. Non-Duplication. In the event that Executive shall perform services
for BankUnited, FSB or any other direct or indirect subsidiary of the Company,
any compensation or benefits provided to Executive by such other employer shall
be applied to offset the obligations of the Company hereunder, it being intended
that this Agreement set forth the aggregate compensation and benefits payable to
Executive for all services to the Company and all of its direct or indirect
subsidiaries, including BankUnited, FSB.
23. Survival. The provisions of Section 9 shall survive the expiration of
the Term of the Agreement plus extensions, if any, or termination of the
Agreement.
24. Dispute Resolution-Arbitration.
(a) This paragraph concerns the resolution of any controversies or
claims between the Company and the Executive (except for claims arising under
Section 9), whether arising in contract, tort or by statute, including but not
limited to controversies or claims that arise out of or relate to: (i) this
Agreement (including any renewals, extensions or modifications); or (ii) any
document related to this Agreement; (collectively a "Claim").
(b) At the request of the Company or the Executive, any Claim shall
be resolved by binding arbitration. The Company will pay the filing fees and
arbitrator fees. The prevailing party to be awarded fees and costs.
16
(c) Arbitration proceedings will be conducted by the American
Arbitration Association or any successor thereof ("AAA"), and the terms of this
paragraph. In the event of any inconsistency, the terms of this paragraph shall
control.
(d) The arbitration shall be administered by AAA under employment
rules and conducted in Florida. All Claims shall be determined by one
arbitrator. All arbitration hearings shall commence within 90 days of the demand
for arbitration and close within 90 days of commencement and the award of the
arbitrator(s) shall be issued within 30 days of the close of the hearing.
However, the arbitrator, upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator(s)
shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute of
limitations, the service on AAA under applicable AAA rules of a notice of Claim
is the equivalent of the filing of a lawsuit. Any dispute concerning this
arbitration provision or whether a Claim is arbitrable shall be determined by
the arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this Agreement.
(f) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this agreement to
arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably
and voluntarily waive any right they may have to a trial by jury in respect of
such Claim. This provision is a material inducement for the parties entering
into this Agreement.
17
IN WITNESS WHEREOF, the Executive and, pursuant to the authorization from
the Board, BankUnited has executed this Agreement as of the date first above
written.
BANKUNITED FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board and Chief Executive Officer
ATTEST:
By: /s/ Xxxx Xxxxxxx
----------------------------------------------------
Secretary Xxxx Xxxxxxx
EXECUTIVE:
By: /s/ Xxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxx
18
Amendment to Employment Agreement
This Amendment to Employment Contract (the "Amendment") entered into this
23rd day of August, 2002, by and between Xxxxxx Xxxxx ("Executive") and
BankUnited Financial Corporation, a Florida corporation (the "Company").
Recitals
A. The Company and the Executive entered into an employment agreement on
August 21, 2002 (the "Agreement").
B. The Agreement provides in paragraph 2.1 Employment and Term that the
"Commencement Date" shall be no sooner than the close of business on September
20, 2002.
C. The Executive and the Company desire to modify the "Commencement
Date",
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties agree as follows:
1. Section 2.1 Employment and Term is restated as follows:
"The Company hereby agrees to employ the Executive and the Executive
hereby agrees to continue to serve the Company, on the terms and
conditions set forth herein, for the period commencing August 23,
2002, (hereinafter the "Commencement Date") and expiring on September
30, 2007 (the "Term") unless sooner terminated as hereinafter set
forth.
2. All defined terms no otherwise defined herein shall be having the
meaning as indicated in the Agreement.
3. Except as modified by this Amendment, all other terms and conditoins of
the Agreement remain in full force and effect.
BankUnited Financial Corporation Executive:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxx
---------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Xxxx Xxxxxxx
----------------------------------
Secretary:
19
