Exhibit 10.14
AGREEMENT
THIS AGREEMENT is made and entered into as of the 25th day of November,
2002, by and between Xxxxx Xxxxxxxx (hereinafter "Ghomeshi") and BankUnited
Financial Corporation, a Florida corporation, (hereinafter "BankUnited") and
BankUnited FSB (hereinafter the "Bank") (BankUnited and the Bank are sometimes
hereinafter referred to collectively as the "Company").
RECITALS:
1. Ghomeshi and BankUnited entered into that certain employment
agreement dated December, 1998 (hereinafter the "BankUnited Agreement"),
pursuant to which Ghomeshi assumed the duties of President and Chief Operating
Officer of the Company.
2. During his tenure as President and Chief Operating Officer of the
Bank and BankUnited, and prior to his heart attack, Ghomeshi was instrumental in
changing and enhancing significantly their business plans, operations, customer
base, profitability and market position.
3. In December, 1999, Ghomeshi suffered a massive heart attack which
led to debilitating and permanent physical infirmities preventing him from
continuing to serve as the Bank's and BankUnited's President and Chief Executive
Officer.
4. As a consequence of his diminished physical condition, Ghomeshi, the
Bank and BankUnited entered into a new employment agreement dated April 15, 2001
(hereinafter the "Second Agreement") which substantially modified the terms and
conditions of Ghomeshi's relationship with the Bank and BankUnited. The Bank
renewed the Second Agreement as of May 31, 2002 for an additional term of one
(1) year.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions. The words and terms not defined in this Agreement shall
have the same meanings as in the BankUnited Agreement and the Second Agreement.
2. Termination of Prior Agreements. The BankUnited Agreement and the
Second Agreement shall be terminated, effective upon complete execution of this
Agreement (hereinafter the "Retirement Date").
3. Stock Options and Grants.
(a) Notwithstanding the termination of the BankUnited Agreement and
the Bank Agreement, and subject to paragraph 3(c) of this Agreement, the Company
agrees that: (i) Ghomeshi shall be permitted to retain all of the 23,333 shares
of BankUnited stock (of a possible total of 70,000 shares) that vested on May 1,
2002 pursuant to the grant of December 8, 2000; (ii) Ghomeshi shall be permitted
to receive the 2,000 shares of BankUnited stock (of a possible total of 8,000
unvested shares) vesting on October 25, 2002 pursuant to the grant of October
25, 2000; (iii) Ghomeshi shall be permitted to receive the option to purchase
15,000 shares of BankUnited stock (of a possible unvested total of 45,000
shares) at an exercise price of $8.625 per share, vesting on November 17, 2002
pursuant to the grant of November 17, 1999; and (iv) Ghomeshi shall be permitted
to receive the option to purchase 15,000 shares of BankUnited stock (of a
possible unvested total of 60,000 shares) at an exercise price of $7.50 per
share, vesting on October 25, 2002 pursuant to the grant of October 25, 2000,
all as shown on Exhibit "1" to the BankUnited Agreement, a copy of which is
attached hereto as Exhibit "A."
(b) In addition to the foregoing, Exhibit "A" to the BankUnited
Agreement provides for the vesting of a total of ninety five thousand six
hundred sixty-seven (95,667) additional options (the "Additional Options") to
purchase BankUnited shares in various amounts in calendar years 2003, 2004, 2005
and 2007. Subject to the terms of paragraphs 3(c) and 3(d) of this Agreement,
the vesting of these additional options shall be accelerated as provided herein.
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(c) All of the BankUnited stock and BankUnited shares represented by
the options to purchase BankUnited shares specified in paragraph 3(a) of this
Agreement, shall be exercised and sold by Ghomeshi as provided in paragraph 3(f)
of this Agreement. Any of the options specified in paragraph 3(b) of this
Agreement that have not vested as of October 24, 2002 shall vest upon execution
of this Agreement, and shall be exercised and sold as provided in paragraph 3(f)
of this Agreement.
(d) Grants of and/or options to purchase BankUnited stock other than
those set forth in Exhibit "A" to this Agreement, if any, are hereby canceled.
(e) The following unvested stock grants listed on Exhibit "A" hereto
are canceled: (i) 1,600 shares scheduled to vest on each of March 24, 2003 and
March 24, 2004, for a total of 3,200 unvested shares of the March 24, 1999
grant; (ii) 2,000 shares scheduled to vest on each of October 25, 2003, October
25, 2004 and October 25, 2005, for a total of 6,000 unvested shares of the
October 25, 2000 grant; and (iii) 23,333 shares scheduled to vest on May 1, 2003
and 23,334 shares scheduled to vest on May 1, 2004, for a total of 46,667
unvested shares of the December 8, 2000 grant, all as shown on Exhibit "A" to
this Agreement.
(f) Ghomeshi shall have the right to exercise all his options
immediately upon execution of this Agreement and for a period of up to sixty
(60) days thereafter. Ghomeshi shall sell all of his BankUnited stock regardless
of how acquired on or before sixty (60) days from the date of this Agreement.
4. 401K Plan. Ghomeshi's 401K plan shall be vested to the extent
provided by the Company's 401K plan upon execution of this Agreement and
Ghomeshi will transfer the assets under the 401 K plan within ninety (90) days
from execution of this Agreement.
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5. Retirement. Effective as of the Retirement Date, Ghomeshi shall
terminate all positions he holds with BankUnited and the Bank.
6. Health Insurance. In the event that the Company's current group
health insurance policy provides coverage for officers and/or employees who are
compelled to retire for medical reasons prior to achieving retirement age then
Ghomeshi shall be provided such coverage until and unless he is employed by
another and is eligible for participation in another group insurance program. In
the event the Company's current group health insurance policy does not provide
coverage for officers and/or employees who are compelled to retire for medical
reasons prior to achieving retirement age then Ghomeshi shall be entitled to the
COBRA benefits for a period of one year from the date of this Agreement at the
Company's expense. Nothing contained in this paragraph shall be construed to
require the Company to modify, restructure or expand its group health coverage.
7. Non-Competition.
7.1 For a period of twelve (12) months, after the Retirement Date,
if Ghomeshi affiliates with a financial institution with assets greater than one
billion dollars and with offices in Dade, Broward, Palm Beach or Xxxxxxx County,
Florida, he 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
employed by BankUnited or the Bank, without the prior express written permission
of BankUnited, which BankUnited may in its absolute discretion withhold;
(b) either directly or indirectly on behalf of that financial
institution, solicit customers of the Bank or BankUnited, whose identity
Ghomeshi learned while employed by BankUnited or the Bank, to move or establish
extensions of credit or accounts.
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(c) For the purposes of this section, Ghomeshi will be deemed to be
affiliated with a financial institution if he is an officer, director, employee
or controlling shareholder.
8. Releases. Upon execution of this Agreement:
(a) Ghomeshi shall deliver to BankUnited a fully executed release in
the form attached hereto as Exhibit "B;" and
(b) BankUnited and the Bank shall deliver to Ghomeshi a fully
executed release in the form attached hereto as Exhibit "C."
9. Attorneys Fees/Indemnification.
The prevailing party shall be entitled to recover reasonable costs
and attorneys fees incurred in connection with any action or lawsuit brought due
to Ghomeshi's employment with the Company or this Agreement. The Company shall
indemnify, hold harmless and defend Ghomeshi against reasonable costs, including
legal fees, incurred by him in connection with or arising out of any third-party
action, suit or proceeding in which he may be involved within the scope of his
employment with the Company to the extent allowed by the Company's by-laws and
Florida law.
11. 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 BankUnited:
Xxxxxx X. Xxxxxx, Chairman
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
with a copy to:
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Xxxxxx Xxx, Esq.
Xxx Xxxxxxxx, et al.
0000 Xxxxx Xxxxxx
000 X. Xxxxxxxx Xxxx.
Xxxxx, Xxxxxxx 00000
If to Ghomeshi:
Xxxxx Xxxxxxxx
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
and
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the foresaid manner.
12. Miscellaneous.
12.1 Interpretation. The parties hereto mutually acknowledge and
agree that this Agreement and the matters memorialized herein have been fully
negotiated with the assistance of qualified legal counsel at "arms length" and,
consequently, no rule of interpretation or construction which would result in an
interpretation or construction in favor of, or to the detriment of, one party
over another party shall apply.
12.2 Complete Agreement and Modification. This Agreement contains
the final, and complete and exclusive expression of the understandings between
the parties with respect to the transactions contemplated by them and supersedes
any prior agreement or representation, oral or written, by any of them. An
amendment or modification of this Agreement or any provision of it will be valid
and effective only if it is in writing and signed by or on behalf of each party
to this Agreement.
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12.3 Direct or Indirect Action and Waivers. When any provision in
this Agreement refers to action to be taken by a person or to action that a
person is prohibited from taking, the provision applies regardless of whether
the action is taken directly or indirectly by any person. No course of dealing
or delay by any party to this Agreement in exercising any right, power, or
remedy under this Agreement will operate as a waiver of any right, power or
remedy of that party. In addition, the waiver by any party of a breach of any
provision of this Agreement will not be considered a waiver of any succeeding
breach of the provision or a waiver of the provision itself.
12.4 Exhibits and Headings. Each exhibit, schedule, document and
agreement referred to in this Agreement, attached to it, or delivered pursuant
to it is an integral part of it and is incorporated by reference in it. The
titles and headings preceding the text of the sections of this Agreement have
been inserted solely for the convenience of reference and neither constitute a
part of this Agreement nor affect its meaning, interpretation, or effect.
12.5 Counterparts. This Agreement and the other agreements executed
pursuant to it may be executed in counterparts, in which case each executed
counterpart will be deemed to be an original and all executed counterparts will
constitute one and the same instrument. This Agreement will become effective
when each party has executed a counterpart.
12.6 Limitation of Grant. Nothing in this Agreement, whether
expressed or implied is intended or should be construed to confer upon, or grant
to, any person other than the parties to this Agreement, any right, remedy, or
claim under or by reason of this Agreement, the other agreements, or any
covenant, condition, or stipulation in them.
12.7 Applicable Law. This Agreement shall be governed by and
construed under the laws of the State of Florida.
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12.8 Arbitration. Any dispute, controversy or claim arising out of
or relating to this Agreement, or the performance or breach of any part thereof,
shall be decided by a binding arbitration conducted in Miami-Dade County,
Florida. The arbitration shall be conducted by a panel of three (3) arbitrators
according to the Commercial Arbitration Rules of the American Arbitration
Association in force at the time the arbitration is commenced except that: (1)
the arbitration shall not be submitted to or administered by the American
Arbitration Association; and (2) the arbitrators shall be selected as follows:
(1) within thirty (30) days of the commencement of the arbitration, the
Claimant(s) and Respondent(s) shall each select one person to serve as an
arbitrator; (2) within thirty (30) days of their selection, the parties'
arbitrators shall select a third arbitrator.
DATED: November 21, 2002 BANKUNITED FINANCIAL
----------------- CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Title: President and COO
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DATED: November 21, 2002 BANKUNITED FSB
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By: /s/ Xxxxxx X. Xxxxx
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Title: President and COO
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DATED: _________________ XXXXX XXXXXXXX
/s/ Xxxxx Xxxxxxxx
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