Exhibit 10.11
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, FSB (the "Bank").
Recitals
A The Board of Directors of the Bank (referred to herein as the "Board")
have determined that it is in the best interests of the Bank and its shareholder
to obtain the services of the Executive.
B The Bank, on behalf of itself and its shareholder, wishes to engage
the services of Executive.
C This Agreement is entered into as a complement to the employment
agreement (the "BankUnited Agreement") between Executive and BankUnited
Financial Corporation and is set out separately in acknowledgement of the Bank's
legal status and to assure the Bank's compliance with applicable federal and
state regulations. Nothing in this Agreement is intended to bestow greater
rights on Executive than the BankUnited Agreement or to prejudice Executive's
rights thereunder.
D The Board has determined that this Agreement will reinforce and
encourage the Executive's attention and dedication to the Bank.
E The Executive is willing to make his services available to the Bank 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 Bank 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 "Date of Termination,"
"Disability," "Disability Effective Date," "Notice of Termination," "Change of
Control Payment" and "Vested Benefits," shall have the same meanings as set
forth in Section 1 of the BankUnited Agreement.
2. Employment.
2.1 Employment and Term. The Bank agrees to engage Executive, and
Executive agrees to provide services to the Bank, on the terms and conditions
set forth herein, for a period of one (1) year commencing on September 20, 2002
(hereinafter the "Commencement Date") and expiring at the conclusion of
September 30, 2003 (the "Term") subject to renewal by
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the Board of Directors, from year-to-year for up to four additional years,
unless Executive resigns prior to that time or is 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
the Bank and President and a member of the Board of Directors of the Bank 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 Bank, render such services
efficiently and to the best of his ability, and use his best efforts to promote
the interests of the Bank.
2.3 Place of Performance. In connection with his employment by the Bank,
the Executive's principal place of employment shall be the Bank's executive
offices in Florida.
3. Compensation.
3.1 Executive shall be compensated in installments, consistent with the Bank's
normal compensation practices, as may be changed from time to time with advance
notice. Executive's compensation entitlements, for the first Term of this
Agreement, and for any annual Term thereafter, if renewed by the Board, shall be
in accordance with the compensation schedule and process set forth in Sections
3.1 and 3.2 of the BankUnited Agreement.
4. Additional Benefits.
4.1 Expense Reimbursement. During the Term, 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 Bank 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 Bank, including expenses for entertainment and all travel and
living expenses while away from home on business or at the request of the Bank,
provided that such expenses are incurred and accounted for in accordance with
the Bank's regular policies and procedures.
4.2 Executive shall receive those other benefits provided under
Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, and 4.9 of the BankUnited Agreement.
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4.2 Indemnification and Insurance.
(a) During the Term of this Agreement, the Bank 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 Bank or service in other capacities at the request of
the Bank. The coverage provided to the Executive pursuant to this section 4.2
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 Bank.
(b) To the maximum extent permitted under applicable law, during
the Term of this Agreement and for a period of 3 years thereafter, the Bank
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 Bank 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 Bank 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 Bank 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 Bank; (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 Bank
involving personal profit, intentional failure to perform stated duties, or
which could seriously prejudice the interest of the Bank, its depositors, or
shareholder; 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 Bank. An express termination by the Bank 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 22.
5.2 Termination for Death or Disability. This Agreement shall
terminate automatically upon the Executive's death and may be terminated by the
Bank upon the Executive's Disability. Upon a termination by reason of the
Executive's Disability, the Bank 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
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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 Bank'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 Bank 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 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 Bank shall have the
right to terminate Executive's employment hereunder by written notice to
Executive; provided, however, that the Bank 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 Bank shall be deemed to have
terminated the Executive's employment pursuant to this Section 5.3 if such
employment is terminated by the Bank without Cause. The Bank and the Executive
hereby stipulate that the Bank 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 Bank or
any subsidiary or affiliate and gives the Bank a full release of all then
existing claims under this Agreement. Any disputes shall be resolved by
Arbitration as provided in Section 22.
5.4 Resignation. In the event Executive resigns other than upon
written request of the Bank, 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
Bank.
6. Change of Control. A "Change in Control" shall be deemed to have
occurred under the conditions set forth in Section 6 of the BankUnited Agreement
and shall include a qualifying disposition of the Bank. In the event of a change
in control, Executive entitlements and the Bank's obligations will be as set
forth in the BankUnited 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 the BankUnited
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 Bank or
any direct or indirect subsidiary or affiliate of the Bank to (or
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for the benefit of) the Executive, the Bank 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 Bank or any direct or indirect
subsidiary or affiliate of 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 Bank, as 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 Bank, or when reduced by the amount of
the payment made to the Bank 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 Bank a copy of each tax return which reflects a liability
for an excise tax payment made by the Bank, 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
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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 Bank or any direct or indirect subsidiary or affiliate
of 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 BankUnited.
8. Regulatory Considerations.
Notwithstanding anything herein to the contrary, any payments to
Executive by the Bank, whether pursuant to this Agreement or otherwise, are
subject to and conditioned on compliance with Section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. 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.
9.1 The Executive acknowledges that during the Term of this
Agreement including all renewals, he will learn or be privy to valuable
confidential business information, and he will develop and cultivate on behalf
of the Bank substantial relationships with past, present and prospective
business customers of the Bank. During the term of this Agreement with the Bank,
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 the Bank.
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 the Bank and is owned and shall continue to be
owned by the Bank. The Executive agrees that at the termination of his
employment, for whatever reason, he will return to the Bank 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.
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9.3 During the Term of this Agreement and for a period of
eighteen (18) months thereafter within all counties where the Bank 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 the Bank, 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 the Bank, without the prior express written permission of the Bank,
which the Bank may in its absolute discretion withhold;
(b) either directly or indirectly solicit or contact
customers of the Bank which solicitation is for or on behalf of any entity
engaged in or seeking to be engaged in the Bank's banking or financial service
business, or in direct competition with the Bank.
(c) In the event of a violation of the provision of this
Section, the Executive's rights to receive grants of the Bank's Class A Common
Stock as provided in Section 4.8 of the BankUnited Agreement shall terminate and
no additional shares shall vest or be granted as provided in paragraph Section
4.8 of the BankUnited Agreement.
(d) The Executives direct or indirect ownership in Casita
Mortgage Co. during its liquidation period shall not be deemed a violation of
this Agreement.
9.5 Executive and the Bank warrant that it is their intention to
agree to restrictions on disclosure of confidential information and on
competition that are as broad as permitted by Florida law (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 the Bank during any period of time in which he
receives compensation from the Bank or its successors.
9.6 The Executive acknowledges that Section 9 is reasonably
necessary to protect the business interest of the Bank and that the provisions
of Section 2 and Section 9 are the essence of this Agreement for the Bank and
the Executive agrees that if he engages in activities prohibited by Section 9,
irreparable harm to the Bank will likely result, for which a remedy in the form
of damages may not be ascertainable. Under such circumstances, the Executive
acknowledges that the Bank 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
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remedies the Bank 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 Bank 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 Bank may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulations. 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 Bank 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 Bank 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. Enforcement Costs Upon a Change of Control. The Bank is aware that
upon the occurrence of a Change of Control, the Board of Directors or a
stockholder of the Bank may then cause or attempt to cause the Bank to refuse to
comply with its obligations under Section 6 of this Agreement, or may cause or
attempt to cause the Bank 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 Bank 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 Bank 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
Bank irrevocably authorizes the Executive from time to time to retain counsel of
his choice at the expense of the Bank 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 Bank on a
regular, periodic basis upon
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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
Bank in connection with the protection and enforcement of their rights under
similar agreements between them and the Bank, 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 Bank, the Executive
agrees to use his best efforts to agree with such other officers or executives
to retain common counsel.
13. 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.
14. 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.
15. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Bank:
Xxxxxx X. Xxxxxx, Chairman
BankUnited, FSB
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
If to the Executive:
Xxxxxx Xxxxx
0000 X.X. 00 XX.
Xxxxx, XX 00000
with a Copy to:
Xxxxxxx Xxxxxxxx, Esq.
Gutter Xxxxxxxx & Rufkin
100 W. Cypress Creek Rd., Suite 900
Ft. Xxxxxxxxxx, XX 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.
16. 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
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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.
17. Successors; Binding Agreement.
17.1 The Bank shall require any successor, whether direct or
indirect to all or substantially all of the business or assets of the Bank
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 Bank would be required to perform it if no such acquisition had taken place
(to the extent not previously performed by the Bank). As used in this Agreement,
"Bank" shall mean the Bank 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.
17.2 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.
17.3 This Agreement is personal to the Executive and, without the
prior written consent of the Bank, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Entire Agreement, Modifications and Waiver. This Agreement
constitutes the entire agreement between the Bank and the Executive with respect
to its subject matter and supersedes all prior negotiations, agreements,
understandings and arrangements, both oral and written, between the Bank and the
Executive with respect to such subject matter including, but not limited to, any
employee manuals of the Bank. 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 Bank
to insist upon strict compliance with any provision hereof shall not be deemed
to be a waiver of such provision or any other provision thereof.
20. Non-duplication. It is intended that the BankUnited Agreement set
forth the aggregate compensation, benefits and perquisites payment to Executive
for all services to the Bank or any of its direct or indirect subsidiaries. Any
payments by the Bank to Executive shall be applied to offset any corresponding
compensation or payment obligations of BankUnited.
21. Survival. The provisions of Section ? shall survive the expiration
of the Term of the Agreement plus extensions, if any, or termination of the
Agreement.
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22. Dispute Resolution-Arbitration.
(a) This paragraph concerns the resolution of any controversies
or claims between the Bank 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 Bank or the Executive, any Claim shall
be resolved by binding arbitration. The Bank will pay the filing fees and
arbitrator fees. The prevailing party to be awarded fees and costs.
(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.
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23. Guarantee. This Agreement is complementary to Executive's
Agreement with BankUnited in which BankUnited has agreed to guarantee the
payment by the Bank of any benefits and compensation to which Executive is or
may be entitled to under the terms and conditions of this 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").
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IN WITNESS WHEREOF, the Executive and, pursuant to the authorization
from the Board, the Bank has executed this Agreement as of the date first above
written.
BANKUNITED, FSB
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board and Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------
Secretary/Assistant Secretary
EXECUTIVE:
By: /s/ Xxxxxx Xxxxx
-----------------------------------------------------
Name: Xxxxxx Xxxxx
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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, FSB (the "Bank").
Recitals
A. The Bank 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 Bank 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 Bank hereby agrees to engage Executive and Executive
agrees to provide services to the Bank, on the terms and
conditions set forth herein, for the period of approximately
one (1) year commencing August 23, 2002, (hereinafter the
"Commencement Date") and expiring at the conclusion of
September 30, 2003 (the "Term") subject to renewal by the
Board of Directors, from year-to-year commencing October 1 for
up to four additional years, unless Executive resigns prior to
that time or is 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
conditions of the Agreement remain in full force and effect.
BankUnited, FSB 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/ Xxxxxxx X. Xxxxxxx
--------------------------------
Assistant Secretary
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