Exhibit 4
Second Amended and Restated
Company Employment Agreement
This Second Amended and Restated Employment Agreement ("Agreement") is
made and entered into effective as of April 1, 2002, by and between BankUnited
Financial Corporation, a publicly held business corporation organized and
operating under the laws of the State of Florida and having an office at 000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000 ("Company"), and Xxxxxx X. Xxxxxx,
an individual residing in Pinecrest, Florida ("Executive"). Any reference to
the "Bank" herein shall mean BankUnited, FSB, a wholly-owned subsidiary of the
Company.
W i t n e s s e t h :
--------------------
Whereas, the Company, the Bank and the Executive entered into an
Employment Agreement dated as of November 14, 1997 ("First Amended and Restated
Employment Agreement") pursuant to which the Executive has served as Chairman of
the Board, President, Chief Operating Officer and Chief Executive Officer of the
Company and the Bank; and
Whereas, section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the applicable regulations thereunder limits the
deduction that a corporation can take on its annual corporate tax return for
compensation paid to a corporation's chief executive officer to $1 million per
year; and
Whereas, the Company currently anticipates that the compensation
scheduled to be paid to the Executive will exceed the $1 million annual limit
under section 162(m) for fiscal years 2002, 2003, 2004 and 2006, resulting in
the Company's inability to deduct on its annual corporate tax return certain
amounts paid to the Executive; and
Whereas, the Executive has agreed to restructure his scheduled
compensation in order that the Company eliminate, to the extent possible,
adverse tax consequences in the form of non-deductible compensation under
section 162(m) and has entered into the agreements attached as Exhibit "A"
hereto in connection with such compensation restructing; and
Whereas, the Executive is willing to continue to serve in the employ
of the Company and the Bank on such basis; and
Whereas, the Company and the Executive each hereby agree that in order
to achieve the foregoing objectives it is necessary to amend and restate the
terms and conditions of the First Amended and Restated Employment Agreement, as
set forth herein and for the Bank to enter into a separate second amended and
restated employment agreement.
Now, Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and the Executive
hereby agree as follows:
Section 1. Employment.
The Company agrees to continue to employ the Executive, and the
Executive hereby agrees to such continued employment, during the period and upon
the terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this Section 2
("Employment Period"). The Employment Period shall be for a term of five years
beginning on the date of this Agreement and ending on the fifth anniversary date
of this Agreement (each, an "Anniversary Date"), plus such extensions, if any,
as are provided by the Board of Directors of the Company ("Board") pursuant to
Section 2(b).
(b) Except as provided in Section 2(c), beginning on the date of this
Agreement, the Employment Period shall automatically be extended for one (1)
additional day each day, unless either the Company or the Executive elects not
to extend the Agreement further by giving written notice to the other party, in
which case the Employment Period shall end on the fifth anniversary of the date
on which such written notice is given. For all purposes of this Agreement, the
term "Remaining Unexpired Employment Period" as of any date shall mean the
period beginning on such date and ending on: (i) if a notice of non-extension
has been given in accordance with this Section 2(b), the fifth anniversary of
the date on which such notice is given; and (ii) in all other cases, the fifth
anniversary of the date as of which the Remaining Unexpired Employment Period is
being determined. Upon termination of the Executive's employment with the
Company for any reason whatsoever, any daily extensions provided pursuant to
this Section 2(b), if not therefore discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the Company
at any time from terminating the Executive's employment during the Employment
Period with or without notice for any reason; provided, however, that the
relative rights and obligations of the Company and the Executive in the event of
any such termination shall be determined under this Agreement.
Section 3. Duties.
The Executive shall serve as the Chairman of the Board, the President
and Chief Executive Officer and Chief Operating Officer of the Company, having
such power, authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Company and as are customarily
associated with such position. Except as provided in Section 7 hereof, the
Executive shall devote his full business 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 and shall
use his best efforts to advance the interests of the Company.
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Section 4. Compensation.
In consideration for the services to be rendered by the Executive
hereunder, for the period commencing April 1, 2002 and ending September 30,
2002, the Company shall pay the Executive no salary, but shall provide the
Executive with the opportunity to earn between Three Hundred Thousand and 00/100
Dollars ($300,000) and Five Hundred Thousand and 00/100 Dollars ($500,000) upon
the satisfaction of certain preestablished short-term compensation goals set by
Company. For the period commencing October 1, 2002 and continuing through
September 30, 2005, in consideration for the services to be rendered by the
Executive hereunder, the Company shall pay to him a salary at an annual rate of
Three Hundred Seventy-Five Thousand and 00/100 Dollars ($375,000), payable in
approximately equal installments in accordance with the Company's customary
payroll practices for senior officers. In addition, for the period commencing
October 1, 2002 and continuing through September 30, 2005, the Company shall
provide the Executive with the opportunity to earn between Seven Hundred
Thousand and 00/100 Dollars ($700,000) and One Million and 00/100 Dollars
($1,000,000) upon the satisfaction of certain preestablished short-term
compensation goals set by Company. For the period commencing October 1, 2005
through the remaining term of this Agreement, the Company shall pay to the
Executive a salary at an annual rate of Six Hundred Seventy-Five Thousand
Dollars ($675,000), payable in approximately equal installments in accordance
with the Company's customary payroll practices for senior officers. Prior to
each Anniversary Date occurring during the Employment Period, the Board shall
review the Executive's annual rate of salary and may, in its discretion, approve
an increase therein. 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. For purposes of Section
9(b)(iv), the term "Salary" shall mean the aggregate value of the annual rate of
cash compensation and the fair market value, determined at the time of grant, of
the stock compensation paid to the Executive pursuant to this Section 4.
Section 5. Additional Employee Benefit Plans and Programs.
During the Employment Period, the Executive shall be treated as an
employee of the Company and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover similarly
situated executives of, the Company, in accordance with the terms and conditions
of such employee benefit plans and programs and compensation plans and programs
and consistent with the Company's customary practices. The Executive's estate or
his designee shall be the beneficiary of life insurance policies on the life of
the Executive having a face amount of at least $6,000,000.00.
Executive hereby agrees not to exercise any options (that are
otherwise exercisable) that will not expire during the period April 1, 2002
through September 30, 2005 to the extent an exercise would result in
nondeductible compensation to the Company under section 162(m) of the Code.
Executive further agrees to exercise options that will expire during the
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period April 1, 2002 through September 30, 2005, to the extent that they are
exercisable, only pursuant to the option gain deferral technique that will not
result in the recognition of income to the Executive during such period. Shares
issued upon exercise pursuant to the option gain deferral technique shall be
referred to herein as "Deferred Option Shares." Notwithstanding the preceding,
in the event of a Change in Control of the Company (as defined in Section 11 of
this Agreement) or in the event of the termination of the Executive's employment
for any reason, the Executive may exercise any options in accordance with the
terms of the option agreements.
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for a period of six (6) years
thereafter, 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 6 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
Employment Period and for a period of six (6) 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.
Section 7. Outside Activities.
During the Employment Period, it shall not be a violation of this
Agreement and shall not permit the Company to terminate the Executive's
employment for Cause if the Executive engages in the activities described below
or any activities similar in nature and scope, so long as such activities do not
significantly interfere with the performance of the Executive's responsibilities
in accordance with this Agreement and do not constitute a violation of any
applicable law, rule, regulation or code of conduct or policy established by the
Company and applicable to similarly situated executives: (i) engaging in the
practice of law, including, without limitation, as a member of the firm of
Camner, Xxxxxxx and Poller, Professional Association, (ii) serving on industry,
corporate, civic or charitable boards or committees, (iii) managing personal
investments (including, without limitation, family controlled enterprises), or
(iv) investing in, advising or serving as an officer or director of other
corporations or business entities. It is expressly understood and agreed that to
the extent any such activities have been conducted by the Executive prior to the
date of this Agreement, the continued conduct of such activities (or the conduct
of activities similar in nature and scope) shall not thereafter be deemed to
interfere with the performance of the Executive's responsibilities to the
Company. The Executive may also serve as an officer or director of the Bank on
such terms and conditions as the Company and the Bank may mutually agree upon,
and such service shall not be deemed to materially interfere with the
Executive's performance of his duties hereunder or otherwise result in a
material breach of this Agreement. If the Executive is discharged or suspended,
or is subject to any regulatory prohibition or restriction with respect to
participation in the affairs of the Bank, he shall continue to perform services
for the Company in accordance with this Agreement but shall not directly or
indirectly provide services to or participate in the affairs of the Bank in a
manner inconsistent with the terms of such discharge or suspension or any
applicable regulatory order.
Section 8. Working Facilities and Expenses.
The Executive's principal place of employment shall be at the
Company's executive offices at the address first above written, or at such other
location within Coral Gables at which the Company shall maintain its principal
executive offices, or at such other location as the Company and the Executive
may mutually agree upon. The Company shall provide the Executive at his
principal place of employment with a private office, secretarial services and
other support services and facilities including, but not limited to, Internet
and Bloomberg Financial Market Commodities and News Access Subscriptions,
cellular telephones, pagers and a lap top computer, suitable to his position
with the Company and necessary or appropriate in connection with the performance
of his assigned duties under this Agreement. The Company shall provide to the
Executive for his exclusive use an automobile owned or leased by the Company
which shall be a BMW 7 Series (or an automobile of similar stature and caliber),
to be used in the performance of his duties hereunder, including commuting to
and from his personal residence. The Company shall reimburse the Executive for
his ordinary and necessary business expenses, including, without limitation, all
expenses associated with his business use of the aforementioned automobile, fees
for memberships in such clubs and organizations as the Executive and the Company
shall mutually agree are necessary and appropriate for business purposes, and
his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, in each case upon presentation
to the Company of an itemized account of such expenses in such form as the
Company may reasonably require.
Section 9. Termination of Employment with Severance Benefits.
(a) The Executive shall be entitled to, and the Company shall pay, the
- -
severance benefits and amounts described in Section 9(b) herein in the event
that his employment with the Company terminates during the Employment Period
under any of the following circumstances:
(i) The Executive's voluntary resignation from employment with the
Company within ninety (90) days following:
(A) the failure of the Board to appoint or reappoint or elect or
re-elect the Executive to the office of Chairman of the Board,
President and Chief Executive Officer and Chief Operating Officer of
the Company; or
(B) the failure of the stockholders of the Company to elect or
re-elect the Executive or the failure of the Board (or the nominating
committee thereof) to nominate the Executive for such election or re-
election; or
(C) the expiration of a thirty (30) day period following the date
on which the Executive gives written notice to the Company of its
material failure, whether by, amendment of the Company's Charter or
By-Laws, action of the Board or the Company's stockholders or
otherwise, to vest in the Executive the functions, duties, or
responsibilities prescribed in Section 3 of this Agreement,
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unless, during such thirty (30) day period, the Company cures such
failure in a manner determined by the Executive, in his discretion, to
be satisfactory; or
(D) the expiration of a thirty (30) day period following the
date on which the Executive gives written notice to the Company of its
material breach of any term, condition or covenant contained in this
Agreement (including, without limitation any reduction of the
Executive's rate of base salary in effect from time to time and any
change in the terms and conditions of any compensation or benefit
program in which the Executive participates which, either individually
or together with other changes, has a material adverse effect on the
aggregate value of his total compensation package), unless, during
such thirty (30) day period, the Company cures such failure in a
manner determined by the Executive, in his discretion, to be
satisfactory; or
(E) the relocation of the executive offices of the Company, a
distance of more than twelve (12) miles from its current Coral Gables,
Florida location; or
(ii) subject to the provisions of Section 10, the termination of the
Executive's employment by the Company for any other reason.
(b) Upon the termination of the Executive's employment with the
Company under circumstances described in Section 9(a) of this Agreement, the
Company shall pay and provide to the Executive (or, in the event of his death
following such termination of employment, provide to his estate):
(i) his earned but unpaid Salary (including, without limitation, all
items which constitute wages under applicable state law and the payment of
which is not otherwise provided for under this Section 9(b)) as of the date
of the termination of his employment with the Company, such payment to be
made at the time and in the manner prescribed by law applicable to the
payment of wages but in no event later than thirty (30) days after
termination of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the officers and employees
of the Company;
(iii) continued group life, health (including hospitalization,
medical, major medical and any supplemental insurance coverages), dental,
accident and long term disability insurance benefits, in addition to that
provided pursuant to Section 9(b)(ii), and after taking into account the
coverage provided by any subsequent employer, if and to the extent
necessary to provide for the Executive and his dependents, for the
Remaining Unexpired Employment Period or to age 65, whichever is later,
coverage equivalent to the coverage to which he would have been entitled
under such plans (as in effect on the date of his termination of
employment, or, if his termination of employment occurs after a Change in
Control, on the date of such Change in Control, whichever benefits are
greater), if he had continued working for the Company during the Remaining
Unexpired Employment Period at the highest annual rate of Salary achieved
during that portion of the Employment Period which is prior to the
Executive's termination of employment
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with the Company, subject to the maximum insurance amounts specified under
the Company's policies, and with such continued coverages to be provided to
the Executive at the Company's expense through COBRA or in any other manner
determined by the Board to be appropriate including, but not limited to,
through the purchase of an individual policy or policies;
(iv) within thirty (30) days following his termination of employment
with the Company, a lump sum payment, in an amount equal to the dollar
amount of the value of the highest aggregate Salary (cash or stock) awarded
to the Executive during any one year of the five years preceding the
Executive's termination of employment with the Company, by the number of
years in the Remaining Unexpired Employment Period, such lump sum to be
paid (without discounting for early payment) in lieu of all other payments
of Salary provided for under this Agreement in respect of the period
following any such termination;
(v) within thirty (30) days following his termination of employment
with the Company, a lump sum payment in an amount equal to the excess, if
any, of:
(A) the present value of the aggregate benefits to which he
would be entitled under any and all qualified and non-qualified
defined benefit pension plans maintained by, or covering employees of,
the Company, if he were 100% vested thereunder and had continued
working for the Company during the Remaining Unexpired Employment
Period, such benefits to be determined as of the date of termination
of employment by adding to the service actually recognized under such
plans an additional period equal to the Remaining Unexpired Employment
Period and by adding to the compensation recognized under such plans
for the year in which termination of employment occurs all amounts
payable under Sections 9(b)(i), (iv), (vii), (viii) and (ix); over
(B) the present value of the benefits to which he is actually
entitled under such defined benefit pension plans as of the date of
his termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Code and a discount
rate, compounded monthly equal to the annualized rate of interest
prescribed by the Pension Benefit Guaranty Corporation for the valuation of
immediate annuities payable under terminating single-employer defined
benefit plans for the month in which the Executive's termination of
employment occurs ("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment
with the Company, a lump sum payment in an amount equal to the present
value of the additional employer contributions to which he would have been
entitled under any and all qualified and non-qualified defined contribution
plans maintained by, or covering employees of, the Company, if he were 100%
vested thereunder and had continued working for the Company during the
Remaining Unexpired Employment Period at the highest annual rate of
compensation achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the Company, and
making the
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maximum amount of employee contributions, if any, required under such plan
or plans, such present value to be determined on the basis of a discount
rate, compounded using the compounding period that corresponds to the
frequency with which employer contributions are made to the relevant plan,
equal to the Applicable PBGC Rate;
(vii) an amount equal to the dollar amount of the highest aggregate
cash or stock bonus and long-term or short-term cash or stock incentive
compensation plan payments paid to the Executive during any one year of the
five years preceding the event triggering the payment of benefits under
this Section 9(b), multiplied by the number of years in the Remaining
Unexpired Employment Period. For purposes of this subsection, the dollar
amount of any stock bonus or stock incentive plan payment shall be the fair
market value of the stock on the date the bonus or incentive payment is
paid to the Executive, such payments to be made (without discounting for
early payment) within thirty (30) days following the Executive's
termination of employment;
(viii) at the election of the Company or the Executive made within
thirty (30) days following the Executive's termination of employment with
the Company, subject to the consent of the other party, which shall not be
unreasonably withheld, upon the surrender of options or appreciation rights
issued to the Executive under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Company a lump sum
payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of
stock of the same class as the stock subject to the option or
appreciation right, determined as of the date of termination of
employment, over (II) the exercise price per share for such option or
appreciation right, as specified in or under the relevant plan or
program; multiplied by
(B) the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of this Section 9(b)(viii) and for purposes of determining the
Executive's right following his termination of employment with the Company
to exercise any options or appreciation rights not surrendered pursuant
hereto, the Executive shall be deemed fully vested in all options and
appreciation rights under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Company, even if he is
not vested under such plan or program;
(ix) at the election of the Company made within thirty (30) days
following the Executive's termination of employment with the Company,
subject to the consent of the Executive, which shall not be unreasonably
withheld, upon the surrender of any shares awarded to the Executive under
any restricted stock plan maintained by, or covering employees of, the
Company a lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same
class of stock granted under such plan, determined as of the date of
the Executive's termination of employment; multiplied by
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(B) the number of shares which are being surrendered.
For purposes of this Section 9(b)(ix) and for purposes of determining the
Executive's right following his termination of employment with the Company
to any stock not surrendered pursuant hereto, the Executive shall be deemed
fully vested in all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Company, even if he is not
vested under such plan, except to the extent such restricted stock is
subject to a performance based vesting requirement designed to qualify as
"qualified performance-based compensation" under section 162(m) of the Code
and the applicable regulations thereunder;
(x) with the following: (A) the personal use, at the Company's
expense for the Remaining Unexpired Employment Period, of a late model
automobile comparable to that used by the Executive prior to his
termination of employment; (B) the right of the Executive to purchase, at
book value, the membership in up to two country clubs which the Company has
maintained for the benefit of the Executive; (C) the transfer to the
Executive of all life insurance policies that the Company then maintains on
the life of the Executive as part of his benefits in accordance with
Section 5; and (D) the continued use, at the Company's expense for the
Remaining Unexpired Employment Period, of the secretarial services,
Internet and Bloomberg Financial Market Commodities and News Access
Subscriptions, cellular telephones, pagers and the lap-top computer which
had been provided to the Executive immediately prior to his termination of
employment;
(xi) any and all deferred compensation, including Deferred Option
Shares, shall be released and paid to the Executive; and
(xii) in the event the Executive's employment is terminated in
connection with a Change of Control pursuant to Section 11 hereof, an
additional cash payment equal to the value of any restricted stock for
which a performance-based vesting requirement has not been met.
For the purpose of determining the highest Salary or aggregate compensation plan
payments used to calculate the lump sum payments specified in Sections 9(b)(iv)
and (vii), the value of all amounts of cash and stock awarded as Salary or paid
or awarded under a compensation plan in any year shall be included, regardless
of whether such amounts are paid or awarded in restricted form, subject to a
deferred compensation plan, held in a trust or subject to any other compensation
arrangement which delays full vesting or delivery of such compensation. The
Company and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this Section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Company and the Executive further agree that the Company
may condition the payments and benefits (if any) due under Sections 9(b)(iii),
(iv), (v), (vi), (vii) and (x) on the receipt of the Executive's resignation
from any and all positions which he holds as an officer of the Company, the Bank
or any subsidiary or affiliate of either of them; provided that the Executive
may elect to remain as a non-chairman director on the Board of Directors,
notwithstanding his resignation as Chairman of the Board. The Company may also
condition
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such payments and benefits on the Executive's making an offer to the Board of
Directors to resign as a director of the Company or a member of a committee of
the Board; provided, however, that the Executive's resignation shall only be
final if all of the members of the Board vote to accept the offer, at the time
the offer is made. In no event shall any of the foregoing provisions of this
Section 9(b) entitle the Executive to additional grants of statutory or non-
statutory options to purchase shares of common stock of the Company pursuant to
any incentive stock option plan, then in effect.
Section 10. Termination Without Additional Company Liability.
(a) In the event that the Executive's employment with the Company
shall terminate during the Employment Period on account of:
(i) the discharge of the Executive for "cause," which, for purposes
of this Agreement shall mean: (A) the Executive intentionally engages in
dishonest conduct in connection with his performance of services for the
Company resulting in his conviction of a felony; (B) the Executive is
convicted of, or pleads guilty or nolo contendere to, a criminal act which
is a felony; (C) the Executive willfully and materially breaches his
fiduciary duties to the Company for personal profit; or (D) the Executive's
willful and material breach or violation of any law, rule or regulation
(other than traffic violations or similar offenses), or final cease and
desist order in connection with his performance of services for the
Company; or
(ii) the Executive's voluntary resignation from employment with the
Company for reasons other than those specified in Section 9(a);
then, except as provided in Sections 9(b) and (c), the Company shall have no
further obligations under this Agreement, other than the payment to the
Executive (or, in the event of his death, to his estate) of his earned but
unpaid Salary and any and all deferred compensation, including Deferred Option
Shares, as of the date of the termination of his employment, and the provision
of such other benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation plans and
programs maintained by, or covering employees of, the Company.
(b) For purposes of Section 10(a)(i)(A) or (B), no act or failure to
act, on the part of the Executive, shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the written advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the Company.
The cessation of employment of the Executive shall not be deemed to be for
"cause" within the meaning of Section 10(a)(i) unless and until:
(i) the Board first holds a meeting, as to which the Executive was
provided thirty (30) days advance written notice and an opportunity to be
heard, and such notice specifies in detail the action or inaction alleged
to constitute cause and demanding that he remedy such action or inaction;
and
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(ii) the Executive shall not have remedied such action or inaction
allegedly constituting cause within sixty (60) days after his receipt of
such written notice; and
(iii) after of such sixty-day period there shall have been delivered
to the Executive a Notice of Termination and a certified copy of a
resolution duly adopted by the affirmative vote of at least three-fourths
of the non-employee members of the Board at a special meeting of the Board
at which he was given an opportunity to appear with legal counsel of his
choosing to refute any allegations of cause, which meeting was called and
held for the purpose of finding that, in the good faith opinion of the
Board, the Executive's action or inaction constituted cause and he did not
remedy such action or inaction after demand by the Board.
(c) Nothing in Section 10(b) shall, prior to delivery of a Notice
of Termination as provided herein, be deemed to suspend or extinguish the
Executive's entitlement to receive the compensation and other benefits provided
under this Agreement. In addition, the Company shall pay reasonable costs and
attorneys' fees incurred by the Executive in connection with any Board action
pursuant to Section 10(b) in the event that the Board does not determine that
cause exists in accordance with the procedures in said section. In the event
that the Company terminates the Executive for cause and, within 30 days after
receipt of the Notice of Termination, the Executive notifies the Company that he
disputes such termination, the Executive shall still be subject to the duties
set forth in Section 3 and entitled to receive the compensation provided under
this Agreement until a final and binding judgment is rendered by a court of
competent jurisdiction finding that the termination was properly for cause, or
until the expiration of a period not to exceed twenty-four (24) months,
whichever occurs first. In the event that the termination is found to be
properly for cause, all payments subsequent to termination to which the
Executive would not otherwise be entitled shall be recoverable by the Company,
except to the extent such payments constitute reasonable compensation for
services rendered. During such contest period, all insurance benefits shall be
maintained and shall not be recoverable if the termination is sustained for
cause.
Section 11. Termination Upon or Following a Change in Control.
(a) A Change in Control of the Company ("Change in Control") shall be
deemed to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Company of a transaction that
would result in the reorganization, merger or consolidation of the Company,
respectively, with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficial owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51
% of the outstanding equity ownership interests in the Company; and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially
Page 11 of 19
owned (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the
meaning of Rule l3d-3 promulgated under the Exchange Act) at least 51%
of the securities entitled to vote generally in the election of
directors of the Company;
(ii) the acquisition of all or substantially all of the assets of
the Company or beneficial ownership (within the meaning of Rule l3d-3
promulgated under the Exchange Act) of 20% or more of the outstanding
securities of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert, or approval by
the stockholders of the Company of any transaction which would result in
such an acquisition;
(iii) a complete liquidation or dissolution of the Company, or
approval by the stockholders of the Company of a plan for such liquidation
or dissolution;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the board of directors of the Company
do not belong to any of the following groups:
(A) individuals who were members of the Board of the Company on
the date of this Agreement; or
(B) individuals who first became members of the Board of the
Company after the date of this Agreement either:
(I) upon election to serve as a member of the Board of the
Company by affirmative vote of three-quarters of the members of
such Board, or of a nominating committee thereof, in office at
the time of such first election; or
(II) upon election by the stockholders to serve as a member
of the Board, but only if nominated for election by affirmative
vote of three-quarters of the members of the Board, or of a
nominating committee thereof, in office at the time of such
first nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the
Board of the Company; or
(v) any event which would be described in Section 11 (a)(i), (ii),
(iii) or (iv) if the term "Bank" were substituted for the term "Company"
therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or a subsidiary of
either of them, or by any employee benefit plan
Page 12 of 19
maintained by any of them. For purposes of this Section 11 (a), the term
"person" shall have the meaning assigned to it under sections 13(d)(3) or
14(d)(2) of the Exchange Act.
(b) In the event of a Change in Control, the Executive shall be
entitled to the payments and benefits contemplated by Section 9(b) in the event
of his termination of employment with the Company under any of the circumstances
described in Section 9(a) of this Agreement or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following his demotion, loss of title,
office or significant authority or responsibility, or following any
reduction in any element of his package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following any relocation of his principal
place of employment or any change in working conditions at such principal
place of employment which the Executive, in his reasonable discretion,
determines to be embarrassing, derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following the failure of any successor to
the Company in the Change in Control to include the Executive in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless the Executive is already covered by a
substantially similar plan of the Company which is at least as favorable to
him; or
(iv) resignation, voluntary or otherwise, for any reason whatsoever
following the effective date of the Change in Control.
Section 12. Termination of Employment Due to Death or Disability.
(a) In the event that the Executive's employment with the Company
shall terminate during the Employment Period on account of:
(i) the Executive's death; or
(ii) a determination that the Executive is eligible for long-term
disability benefits under the Company's long-term disability insurance
program or, if there is no such program, under the federal Social Security
Act;
then, subject to the provisions of subsection 12(b) and the next immediately
succeeding sentence, to be applicable in the event of the Executive's death, the
Company shall have no further obligations under this Agreement, other than the
payment to the Executive (or, in the event of his death, to his estate) of his
earned but unpaid Salary and any and all deferred compensation, including
Deferred Option Shares, as of the date of the termination of his employment, and
the provision of such other benefits, if any, to which he is entitled as a
former employee under the employee benefit plans and programs and compensation
plans and programs maintained by, or covering employees of, the Company. In the
event of the Executive's death,
Page 13 of 19
the payments and benefits described in Sections 9(b)(ii), 9(b)(iii) and
9(b)(x)(A), (B) and (C) hereof shall be provided to the Executive's surviving
spouse.
(b) Notwithstanding the provisions of subsection 12(a) hereof, in the
event a Change in Control (as defined in Section 11 of this Agreement) occurs
within eighteen (18) months following the effective date of the Executive's
termination of employment with the Company due to his death or disability, the
Executive (or his estate, in the event of his death) shall be entitled to
receive the payments and benefits that would have been paid to the Executive
pursuant to Section 9(b) of this Agreement assuming the Executive's employment
with the Company had terminated following the date such Change in Control
occurs; provided, however, the Company's obligations under this Section 12(b)
shall be offset by any compensation, benefits or perquisites previously provided
to the Executive's surviving spouse pursuant to Section 12(a) hereof as a result
of the Executive's death during the Employment Period. For purposes of the
compensation, benefits or perquisites to be provided to the Executive pursuant
to Section 9(b) of this Agreement, the Executive's "employment termination date"
shall be the date immediately following the date such Change in Control occurs
and any elections permitted to be made by the Executive pursuant to Section 9(b)
may be made by the Executive or his legally appointed representative, whatever
the case may be.
Section 13. Tax Indemnification.
(a) This Section 13 shall apply if Executive's employment is
terminated upon or following (i) a Change in Control (as defined in Section 11
of this Agreement); or (ii) a change "in the ownership or effective control" of
the Company or the Bank or "in the ownership of a substantial portion of the
assets" of the Company or the Bank within the meaning of section 280G of the
Code. If this Section 13 applies, then, if 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 13;
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
Page 14 of 19
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 13(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 13 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 13(a), the Executive or the Company, 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 13(a), when increased by the amount of the payment
made to the Executive under this Section 13(b) by the Company, or when reduced
by the amount of the payment made to the Company under this Section 13(b) by the
Executive, equals the amount that should have properly been paid to the
Executive under Section 13(a). The interest paid under this Section 13(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 13, 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 13(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
13(c), the term "taxes" shall include, but not be limited to, income taxes and
the Executive's share of any employment taxes.
Page 15 of 19
Section 14. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Company's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Company from time to time.
Section 15. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Company and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Company may
be sold or otherwise transferred. Failure of the Company to obtain from any
successor its express written assumption of the Company's obligations hereunder
at least sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
Section 16. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Xx. Xxxxxx X. Xxxxxx
c/o Camner, Xxxxxxx and Poller, P.A.
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
with a copy to:
Camner, Xxxxxxx and Poller, P.A.
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Managing Director
Page 16 of 19
If to the Company:
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Compensation Committee of the Board of Directors
with a copy to.
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 17. Indemnification for Attorneys' Fees.
The Company shall indemnify, hold harness and defend the Executive
against reasonable costs, including legal fees, incurred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that the Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the
Company's obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
Section 18. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 19. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 20. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
Page 17 of 19
Section 21. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of Florida
applicable to contracts entered into and to be performed entirely within the
State of Florida.
Section 22. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
Section 23. Entire Agreement; Modifications.
This instrument contains the entire agreement or the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
Section 24. Guarantee.
The Company hereby agrees to guarantee the payment by the Bank of any
benefits and compensation to which the Executive is or may be entitled to under
the terms and conditions of the employment agreement dated effective as of the
1st day of April, 2002 between the Bank and the Executive, a copy of which is
attached hereto as Exhibit A ("Bank Agreement").
Section 25. Non-duplication.
In the event that the Executive shall perform services for the Bank or
any other direct or indirect subsidiary of the Company, any compensation,
benefits or perquisites provided to the 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, benefits and
perquisites payable to the Executive for all services to the Company and all of
its direct or indirect subsidiaries.
Section 26. Required Regulatory Provisions.
Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. (S)1828(k), and any
regulations promulgated thereunder.
Page 18 of 19
In Witness Whereof, the Company has caused this Agreement to be
executed and the Executive has hereunto set his hand, all as of the day and year
first above written.
Attest: BankUnited Financial Corporation
By /s/ Xxxx Xxxxxxx By /s/ Xxxxxxxx X. Xxxxx
---------------------------- ----------------------------------
Secretary Name: Xxxxxxxx X. Xxxxx
Title: Senior Executive Vice President
and Chief Financial Officer
[seal] The Executive
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Page 19 of 19
Exhibit List
Deferred Compensation Agreement dated March 20, 2002.
Trust Under Deferred Compensation Agreement dated March 20, 2002.
Stock Option Deferred Exercise Agreement dated March 20, 2002.
Stock Purchase Agreement dated March 20, 2002.
Agreement to Exchange Shares dated March 20, 2002.
Amendment to Restricted Stock Agreement dated March 20, 2002.
DEFERRED COMPENSATION AGREEMENT
-------------------------------
THIS AGREEMENT, is made and entered into as of the 20 day of March
2002, by and between BANKUNITED FINANCIAL CORPORATION. (the "Company") and
XXXXXX X. XXXXXX ("Executive").
WITNESSETH:
WHEREAS, the Company and the Executive entered into an incentive bonus
arrangement whereby the Executive was to receive a bonus of cash compensation
upon the attainment of certain performance goals for the Company's fiscal year
which ended September 30, 2001 (the "Bonus"), and
WHEREAS, although such performance goals were attained, it was
determined prior to the time the Bonus was to be paid to the Executive (the
"Payment Date") that the payment of the Bonus to the Executive on the Payment
Date would not be deductible, for federal income tax purposes, by the Company;
and
WHEREAS, prior to the Payment Date, the Company and the Executive
agreed to defer the payment of the Bonus until such time as the bonus
compensation will be deductible by the Company for federal income tax purposes;
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Bonus Deferral. The Company and the Executive hereby mutually
--------------
agree to defer the payment of the Bonus amount of $528,000 (Five-Hundred,
Twenty-Eight Thousand Dollars) as provided herein. The Bonus amount so deferred
shall be credited to a bookkeeping account in the Executive's name (the
"Account").
2. Earnings of Account. All earnings on the Account shall be paid
-------------------
directly to the Executive.
3. Timing Benefit Distributions. The Company shall commence paying
----------------------------
Executive (or the Executive's beneficiary) in the manner provided in Section 4
of this Agreement, the value of Executive's Account upon the first to occur of
any of the following events:
(a) The Executive's termination of employment with the Company;
(b) The Executive's death;
(c) October 1, 2005.
(d) A Change in Control of Company as defined in section 11 of
the Employment Agreement by and between the Company and the
Executive dated April 1, 2002.
4. Method of Distribution. Payments made pursuant to Section 3 of
----------------------
this Agreement shall be made in a lump sum. Payments shall be made in shares of
the Company's
Noncumulative Convertible Preferred Stock, Series B ("Company Stock). Payments
made in shares of Company Stock shall be pursuant to the terms and conditions of
the Company's 2002 Stock Incentive Plan.
5. Vesting. Executive shall be fully vested in the amount credited
-------
to Executive's Account.
6. Beneficiary. Executive's beneficiary for purposes of this
-----------
Agreement shall be Xxxxxx X. Xxxxxx Living Trust.
7. Funding of Benefits. The obligations of the Company hereunder
-------------------
shall constitute a general, unsecured obligation, payable solely out of general
assets, and Executive shall not have any right to any specific assets of the
Company. Executive or his beneficiary shall have only the rights of a general,
unsecured creditor against the Company for any distributions due under this
Agreement. Notwithstanding the preceding, the Company shall establish an
irrevocable grantor's trust (the "Trust") for the purpose of holding general
assets of the Company and facilitating the Company's ability to pay the amounts
due to the Executive or his beneficiary under the terms of this Agreement,
subject to the claims of Company's creditors in the event of the insolvency of
the Company.
The Company shall contribute to such Trust $528,000 (Five Hundred and
Twenty-Eight Thousand Dollars) and direct the Trustee of such Trust to invest
such amount in shares of Company Stock or, in the alternative, the Company shall
contribute to the Trust shares of Company Stock, which have an aggregate fair
market value equal to $528,000 (Five Hundred and Twenty-Eight Thousand Dollars)
as determined in accordance with the resolutions of the Compensation Committee
of the Company's Board of Directors on March 20, 2002. TheTrustee shall have the
right to vote and tender shares of Company Stock held by the Trust.
8. Amendment and Termination. It is the intention of the Company
-------------------------
that this Agreement shall be effective until payments are made under the terms
hereof. Nonetheless, this Agreement may be amended at any time and from time to
time in any fashion, and may be terminated at any time in its entirety, by
written agreement executed by Executive and the Company.
9. No Contract of Employment. Nothing contained herein shall be
-------------------------
construed as conferring upon the Executive the right to be employed or continue
in the employ of the Company.
10. Applicable Law. Unless otherwise governed by any applicable
--------------
federal law, this Agreement shall be construed and governed under the laws of
the State of Florida.
11. Successors. This Agreement shall extend to, and be binding upon
----------
Executive, his legal representatives, beneficiaries, heirs, and distributees and
upon the Company and its successors and assigns, and the term "Company" as used
herein shall include its successors and assigns whether by merger,
consolidation, combination, or otherwise.
2
12. Entire Agreement. This instrument sets forth the entire
----------------
agreement of the parties relating to the subject matter hereof and supersedes
all prior agreements and understandings with respect to such subject matter, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
13. Administration. The Company shall administer and interpret this
--------------
Agreement at its sole and complete discretion. Executive acknowledges the
Company's right to administer this Agreement and agrees to be bound by any
administrative actions by the Company that are consistent with this Agreement
and taken in good faith.
3
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first above written this 20th day of
March, 2002.
BANKUNITED FINANCIAL CORPORATION
By: Xxxxxxxx X. Xxxxx
-----------------------------------
Title: Senior Executive Vice President and
-----------------------------------
Chief Financial Officer
-----------------------------------
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
------------------------------------------
4
TRUST UNDER DEFERRED COMPENSATION AGREEMENTS
THIS TRUST AGREEMENT (the "Trust Agreement") made this 20th day of March,
2002, by and between BankUnited Financial Corporation (the "Company") and Xxxxxx
Xxxxx (The "Trustee");
WHEREAS, the Company has entered into certain deferred compensation
arrangements with Xxxxxx X. Xxxxxx (the "Participant"), which are listed on
Exhibit A, attached hereto (the "Agreements"), as a method to defer
compensation;
WHEREAS, the Company has incurred or expects to incur liability under the
terms of such Agreements with respect to the Participant;
WHEREAS, the Company wishes to establish a trust (hereinafter called
"Trust") and to contribute assets to the Trust, that shall be held therein, to
serve as a source of assets to assist the Company in meeting its obligations
under the Agreements, subject to the claims of the Company's creditors in the
event of the Company's Insolvency, as defined below;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Agreements as unfunded arrangements
maintained for the purpose of providing deferred compensation for the
Participant;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held and disposed of as follows:
SECTION 1. ESTABLISHMENT OF TRUST
(a) The Trust shall consist of such sums of money and other property
acceptable to the Trustee as from time to time may be paid or delivered to the
Trustee by the Company immediately following the date hereof or from time to
time in the future, as determined by the Company, or as otherwise may be
required hereunder or under the Agreements. All such money and other property,
all investments and reinvestment made therewith or proceeds thereof and all
earnings and profits (less losses) thereon, less all payments and charges as
authorized herein, for the Trust are hereinafter collectively referred to as the
"Trust Fund." The Trust Fund shall be held by the Trustees and shall be dealt
with in accordance with the provisions of this Trust Agreement for the purposes
of investing the assets of the Trust.
(b) Subject to Section 2(c) of Trust Agreement, the Trust hereby
established shall become irrevocable upon contribution by the Company of any
assets or property to the Trust pursuant to this Section 1.
Page 1 of 10
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of Company and shall be used exclusively for
the uses and purposes set forth in the Agreements and general creditors as
herein set forth. Agreements' Participant and his beneficiaries shall have no
preferred claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Agreements and this Trust Agreement shall be
mere unsecured contractual rights of the Agreements' Participant and his
beneficiaries against Company. Any assets held by the Trust will be subject to
the claims of Company's general creditors under federal and state law in the
event of Insolvency, as defined in Section 3(a) herein.
(e) The Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with Trustee
to augment the principal to be held, administered and disposed of by the Trustee
as provided in this Trust Agreement. Neither the Trustee nor any Agreements'
Participant or beneficiary shall have any right to compel such additional
deposits.
SECTION 2. PAYMENTS TO AGREEMENTS' PARTICIPANT AND HIS BENEFICIARIES.
(a) The amount, form and timing of all benefits and other payments to the
Participant and his beneficiaries shall be governed by the terms of the
Agreements. The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Agreements'
participant (and his beneficiaries), that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which such amount is to be paid (as provided for or available under
the Agreements), and the time of commencement for payment of such amounts.
Except as otherwise provided herein, the Trustee shall make payments to the
Agreements' Participant and his beneficiaries in accordance with such Payment
Schedule. With respect to the payments to Agreements' Participant, the Company
shall be solely responsible for determining the amounts of income that are
taxable and reportable, determining the nature and amounts of taxes to be
withheld and for withholding, remitting and reporting all such income and taxes
to the applicable government taxing authorities. The Trustee shall have no
duties with respect thereto.
(b) The entitlement of the Agreements' Participant or his beneficiaries to
benefit under the Agreement shall be determined by the Company or such party as
it shall designate under the Agreements, and any claim for such benefits shall
be considered and reviewed under the procedures set out in the Agreements.
(c) The Company may make payment of benefits directly to Agreements'
participant or his beneficiaries as they become due under the terms of the
Agreements. The Company shall
Page 2 of 10
notify the Trustee of its decision to make payment of benefits directly prior to
the time amounts are payable to the Participant or his beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the terms of the
Agreements, the Company shall make the balance of each such payment as it falls
due. The Trustee shall notify the Company where principal and earnings are not
sufficient.
SECTION 3. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY
WHEN COMPANY IS INSOLVENT.
(a) The Trustee shall cease payment of benefits to the Agreements'
Participant and his beneficiaries if the Company is Insolvent. The Company shall
be considered "Insolvent" for purposes of this Trust Agreement if (i) the
Company is unable to pay its debts as they become due, or (ii) the Company is
subject to a pending proceeding as a debtor under the United States Bankruptcy
Code.
(b) At all times during the continuance of this Trust, as provided in
Section 1(d) hereof, the principal and income of the Trust shall be subject to
claims of general creditors of Company under federal and state law as set forth
below.
(1) The Board of Directors of the Company shall have the duty to
inform the Trustee in writing of Company's Insolvency. If a person claiming to
be a creditor of Company alleges in writing to the Trustee that the Company has
become Insolvent, the Trustees shall determine whether the Company is Insolvent
and, pending such determination, the Trustee shall discontinue payment of
benefits to Agreement Participant or his beneficiaries.
(2) Unless Trustee has actual knowledge of the Company's Insolvency,
or has received notice from the Company or a person claiming to be a creditor
alleging that Company is Insolvent, the Trustee shall have no duty to inquire
whether Company is Insolvent. The Trustee may in all events rely on such
evidence concerning Company's solvency as may be furnished to the Trustee and
that provides Trustee with a reasonable basis for making a determination
concerning the Company's solvency.
(3) If at any time the Trustee has determined that the Company is
Insolvent, the Trustees shall discontinue payments to Agreements' Participant or
his beneficiaries and shall hold the assets of the Trust for the benefit of the
Company's general creditors. Nothing in this Trust Agreement shall in any way
diminish any rights of Agreements' Participant or his beneficiaries to pursue
their rights as general creditors of the Company with respect to benefits due
under the Agreements or otherwise.
(4) The Trustee shall resume the payment of benefits to Agreements'
Participant or his beneficiaries in accordance with Section 2 of this Trust
Agreement only after the Trustee have determined that the Company is not
Insolvent (or is no longer Insolvent).
Page 3 of 10
(c) Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3(b) hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Agreements' Participant or his beneficiaries under the terms of the Agreements
for the period of such discontinuance, less the aggregate amount of any payments
made to Agreements' Participant or his beneficiaries by the Company in lieu of
the payments provided for hereunder during any such period of discontinuance.
SECTION 4. PAYMENTS TO COMPANY.
Except as provided in Section 2(c) hereof, after the Trust has become
irrevocable, the Company shall have no right or power to direct the Trustee to
return to the Company or to divert to others any of the Trust assets before all
payment of benefits have been made to Agreements' Participants and his
beneficiaries pursuant to the terms of the Agreements.
SECTION 5. INVESTMENT AUTHORITY.
(a) The Trustee may invest in securities (including stock or rights to
acquire stock) or obligations issued by the Company. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with Agreements'
Participant, except that voting rights with respect to the Trust assets will be
exercised in accordance with the Agreements, and dividend rights with respect to
Trust assets will rest in accordance with the Agreements.
(b) The Company shall have the right at anytime, and from time to time in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by the Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
SECTION 6. DISPOSITION OF INCOME.
During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7. ACCOUNTING BY TRUSTEE.
The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between the
Company and the Trustee. Within 60 days following the close of each calendar
year and within 30 days after the removal or resignation of the Trustee, the
Trustee shall deliver to the Company a written account of its administration of
the Trust during such year or during the period from the close of the last
preceding year to the date of
Page 4 of 10
such removal or resignation, setting forth all investments, receipts,
disbursements and other transactions effected by it, including a description of
all securities and investments purchased and sold with the cost or net proceeds
of such purchases or sales (accrued interest paid or receivable being shown
separately), and showing all cash, securities and other property held in the
Trust at the end of such year or as of the date of such removal or resignation,
as the case may be. The Company may approve the account either by written notice
or approval delivered to the Trustee or by failure to object in writing to the
Trustee within ninety (90) days from the date on which the account was delivered
to the Trustee. Upon receipt of written approval of the accounting, or upon
expiration of the 90-day period without written objections, the account shall be
approved, and the Trustee shall be released and discharged with respect to the
account as if the account had been settled and allowed by a decree of a court of
competent jurisdiction. Nothing contained herein, however, shall be deemed to
preclude the Trustee from having its account settled by a court of competent
jurisdiction.
SECTION 8. RESPONSIBILITY OF TRUSTEE.
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, provided, however, that
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company which is contemplated by,
and in conformity with, the terms of the Agreements or this Trust and is given
in writing by the Company; and provided further that the Trustee shall incur no
liability to any person for any reasonable action or failure to act taken
pursuant to a reasonable determination of the existence or nonexistence of an
event of Insolvency pursuant to Section 3 of this Trust Agreement. In the event
of a dispute between the Company and a party, the Trustee may apply to a court
of competent jurisdiction to resolve the dispute.
(b) If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust.
(c) The Trustee may consult with legal counsel (who may also be counsel
for the Company generally) with respect to any of its duties or obligations
hereunder.
(d) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein,
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
Page 5 of 10
(e) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
SECTION 9. COMPENSATION AND EXPENSES OF TRUSTEE.
(a) The Company shall pay all administrative and Trustee's fees and
expenses.
(b) The Company shall pay the Trustee such compensation for its services
as is set forth in the Fee Schedule attached hereto and as may thereafter be
agreed upon in writing from time to time by the Company and the Trustee. Such
compensation shall be paid directly by the Company.
SECTION 10. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time by written notice to the Company,
which shall be effective sixty (60) days after receipt of such notice unless the
Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on sixty (60) days notice or
upon shorter notice accepted by the Trustee.
(c) Upon a change in control, as defined herein, the Trustee may not be
removed by the Company for ten (10) years.
(d) If the Trustee resigns or is removed within ten (10) years of a Change
in Control, as defined herein, the Trustee shall select a successor Trustee in
accordance with the provisions of Section 11(b) hereof prior to the effective
date of the Trustee's resignation or removal.
(e) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within ninety (90) days after the
receipt of notice of resignation, removal or transfer, unless the Company
extends the time limit.
(f) If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under paragraph (a) or (b) of this section. If no such appointment of a
successor has been made, the Trustee may apply to a court or competent
jurisdiction for appointment of a successor or for instructions. All expenses
of the Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust.
Page 6 of 10
SECTION 11. APPOINTMENT OF SUCCESSOR.
(a) If the Trustee resigns, or is removed, in accordance with Section
10(a) or (b) hereof, the Company may appoint any third party, such as a bank
trust department or other party that may be granted corporate trustee powers
under state law, and in accordance with the Agreements, as a successor to
replace the Trustee upon resignation or removal. Each such successor trustee,
during such period as it shall act as such, shall be bound by all of the
provisions hereof, as well as any instructions provided by the Company pursuant
to the provisions hereof, shall have the powers and duties conferred upon an
individual trustee, and the word "Trustee" wherever used herein, except where
the context otherwise requires, and shall be deemed to include any successor
trustee. The appointment shall be effective when accepted in writing by the new
Trustee, who shall have all of the rights and powers of the former Trustee,
including ownership rights in the Trust assets. The former Trustee shall execute
any instrument necessary or reasonably requested by the Company or the successor
Trustee to evidence the transfer.
(b) The successor Trustee shall not be responsible for and the Company
shall indemnify and defend the successor Trustee from any claim or liability
resulting from any action or inaction of any prior Trustee or from any other
past event, or any condition existing at the time it becomes the successor
Trustee.
SECTION 12. AMENDMENT OR TERMINATION.
(a) This Trust Agreement may be amended by a written instrument executed
by the Trustee and the Company. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Agreements or shall make the Trust
revocable after it has become irrevocable in accordance with Section 1(b)
hereof.
(b) Once the Trust has become irrevocable, the Trust shall not terminate
until the date on which Agreements' participants and their beneficiaries are no
longer entitled to benefits pursuant to the terms of the Agreements. Upon
termination of the Trust, any assets remaining in the Trust shall be returned to
Company.
SECTION 13. CHANGE IN CONTROL.
A Change in Control of the Company ("Change in Control") shall be deemed to
have occurred upon the happening of any of the following events:
(a) approval by the stockholders of the Company of a transaction that
would result in the reorganization, merger or consolidation of the Company,
respectively, with one or more other persons, other than a transaction following
which:
Page 7 of 10
(i) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the meaning of
Rule l3d-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) in substantially the same relative proportions by persons
who, immediately prior to such transaction, beneficially owned (within the
meaning of Rule l3d-3 promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Bank; and
(ii) at least 51% of the securities entitled to vote generally in the
election of directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the meaning of
Rule l3d-3 promulgated under the Exchange Act) at least 51 % of the securities
entitled to vote generally in the election of directors of the Company;
(b) the acquisition of all or substantially all of the assets of the
Company or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the outstanding securities of the
Company entitled to vote generally in the election of directors by any person or
by any persons acting in concert, or the approval by the stockholders of the
Company of any transaction which would result in such an acquisition;
(c) a complete liquidation or dissolution of the Company, or approval by
the stockholders of the Company of a plan for such liquidation or dissolution;
(d) the occurrence of any event if, immediately following such event, at
least 50% of the members of the board of directors of the Company do not belong
to any of the following groups:
(i) individuals who were members of the Board of the Company on the
date of this Agreement; or
(ii) individuals who first became members of the Board of the Company
the date of this Agreement either:
(A) upon election to serve as a member of the Board of
directors of the Company by affirmative vote of three-quarters of the members of
such board, or of a nominating committee thereof, in office at the time of such
first election; or
(B) upon election by the stockholders of the Board to serve as
a member of the board of directors of the Board, but only if nominated for
election by affirmative vote of three-quarters of the members of the board of
directors of the Board, or of a nominating committee thereof, in office at the
time of such first nomination;
provided, however, that such individual's election or nomination did not result
from an actual or threatened election contest (within the meaning of Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents (within the meaning of Rule 14a-
11 of Regulation 14A promulgated under the Exchange Act) other than by or
Page 8 of 10
on behalf of the Board of the Company; xxXx no event, however, shall a Change in
Control be deemed to have occurred as a result of any acquisition of securities
or assets of the Company, or a subsidiary of the Company, by the Company, or a
subsidiary of the Company, or by any employee benefit plan maintained by any of
them. For purposes of this Section 13(a), the term "person" shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
SECTION 14. MISCELLANEOUS
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
(b) Benefits payable to the Agreements' Participant and his beneficiaries
under this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, unless otherwise preempted by any
applicable federal law.
Page 9 of 10
SECTION 15. EFFECTIVE DATE.
The effective date of this Trust Agreement shall be March 20, 2002.
ATTEST: BankUnited Financial Corporation
Xxxx Xxxxxxx By: Xxxxxxxx X. Xxxxx
------------------------ ------------------------
ATTEST Trustee
Xxxxx Xxxxxx By: Xxxxxx Xxxxx
------------------------ ------------------------
Page 10 of 10
BANKUNITED FINANCIAL CORPORATION
STOCK OPTION DEFERRED EXERCISE AGREEMENT
April 1, 2002
Xx. Xxxxxx X. Xxxxxx
Xxxxxx, Xxxxxxx and Poller, P.A.
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Re: Amendment of Nonqualified Stock Option Grants
---------------------------------------------
Dear Xx. Xxxxxx:
BankUnited Financial Corporation (the "Company") previously granted to you
one or more nonqualified stock options (the "Option" or "Options") to purchase
common shares of beneficial interest of the Company (the "Shares") under the
BankUnited, a Savings Bank, Non-Statutory 1986 Stock Option Plan, the BankUnited
Financial Corporation Non-Statutory 1992 Stock Option Plan, the BankUnited
Financial Corporation 1994 Incentive Stock Option Plan and the BankUnited
Financial Corporation 1996 Incentive Stock Option and Stock Award Plan (the
"Plans") which are still outstanding as of the date of this letter. You have
agreed to restructure your compensation from the Company and BankUnited, FSB, a
wholly owned subsidiary of the Company, for the period April 1, 2002 to
September 30, 2005, to assist the Company in ensuring that all of your
compensation for this period is deductible by the Company for federal tax
purposes. As part of the restructuring of your compensation you have agreed to
defer the receipt of all or a portion of the Shares otherwise payable to you
upon the exercise of Options that would expire if not exercised during this
period, to the extent that the exercise of the Options would result in your
compensation being non-deductible by the Company.
Attached to this letter is an amendment to all of the nonqualified Options
granted to you under the Plans. Your consent to this amendment will permit you
to elect to defer the receipt of all or a portion of the Shares otherwise
payable upon the exercise of the Options. Set forth below is a brief
description of the tax treatment of this deferral election as well as some of
the more significant features and requirements of the deferral election. This
information is only a summary and we encourage you to consult with your tax
advisor about the specific impact of the deferral election on your taxes.
When you exercise an Option that is subject to a deferral election, you
must "pay" the exercise price by certifying that you (i) own Shares with a fair
market value equal to the exercise price of the Option (the "Exchange Shares"),
(ii) have owned these Exchange Shares for at least six months, and (iii) that
you have not used these Exchange Shares as "payment" of an exercise price under
the Plan in the previous six months. You will not have to turn these Exchange
Shares over to the Company. The number of Shares that you would have received
upon exercise of the Option if you had not made the deferral election less the
number of Shares that have an aggregate fair market value on the date of
exercise equal to the exercise price are the so-called
"Excess Shares." When the Company distributes a cash dividend to its
shareholders, the Company will pay you the dividend with respect to the Excess
Shares. The Company will hold the Excess Shares in an irrevocable grantor's
trust and distribute such Shares to you in accordance with your deferral
election, subject to the claims of the Company's creditors in the event of the
insolvency of the Company.
Ordinarily, upon the exercise of the Option, you must recognize as ordinary
taxable income the amount by which the fair market value of the Shares on the
date of exercise exceeds the exercise price. If you elect to defer receipt of
the Shares upon exercise, your recognition of ordinary income will be postponed
until you actually receive the Excess Shares. The fair market value of the
Excess Shares on the date on which you actually receive them will then be
-------- -------
treated as ordinary compensation income. Any cash amounts that you receive as a
--------------------------------------
result of the distribution of a cash dividend will also be treated as ordinary
------------------------------------------------------------------------------
compensation income when you actually receive such amounts. When you sell the
----------------------------------------------------------
Exchange Shares or the Excess Shares, you will realize capital gain or loss
(long-term or short-term, depending on the length of time the Shares were held)
in an amount equal to the difference between your tax basis in the Shares and
the selling price. For the Exchange Shares, your tax basis will ordinarily
remain the same as it was immediately prior to the exercise. For the Excess
Shares, your tax basis will ordinarily be the fair market value of the Shares at
the time you received them.
Generally, in order to benefit from this deferred tax treatment, you must
complete and return an irrevocable deferral election form on or before December
1st of the calendar year prior to the year of the exercise. However, because
you first became eligible to defer Shares in connection with the restructuring
of your Company compensation pursuant to action of the Company's Board of
Directors on March 20, 2002, for options exercised after that date, you may make
an irrevocable deferral election to defer the receipt of any Shares from
exercises of your Option which occur between May 1, 2002 and September 30, 2002.
To take advantage of this deferral opportunity for exercises made by you between
May and September 2002, you must complete and return an irrevocable deferral
election form on or before April 19, 2002. In addition, to take advantage of
the deferral opportunity for the 2003, 2004, and 2005 Company fiscal year
(October 1 to September 30 ), you must complete and return an irrevocable
deferral election form on or before September 1, 2002 and the September 1 of
each calendar year thereafter. (Deferral election forms for Options that will
be exercised between May 1, 2002 and September 30, 2002, and those to be
exercised in the Company's 2003, 2004 and 2005 fiscal years, are enclosed.)
On your deferral election form, you will specify when and at what intervals
you wish to receive a distribution of your Excess Shares. The date you specify
may be no earlier than the first to occur of October 1, 2005 or three years from
the date of the deferred exercise of the Options. You may subsequently amend
the designated distribution date of the Excess Shares by filing an amendment
with the Committee no later than 12 months prior to the date you originally
designated for distribution. You may only amend your distribution date twice.
You may elect to have the Excess Shares distributed to you in a single
distribution, or over a period of time, not to exceed five annual installments.
The Excess Shares will be distributed to you in accordance with your election.
However, if you terminate employment
2
prior to the date on which you are entitled to a distribution of Excess Shares,
the Excess Shares will be distributed to you soon after your termination of
employment, regardless of any election you made. In addition, in the event of a
Change in Control (as defined in section 11 of your employment agreement with
the Company, dated April 1, 2002) the Excess Shares will be distributed to you
regardless of any election you made.
If the Committee determines that you have encountered an unforeseeable
hardship (as defined in your Option), you may have distributed to you as many
Shares as necessary to alleviate your hardship up to the number of your Excess
Shares.
If you die before your Excess Shares have been fully distributed, the
beneficiary designated on your deferral election form will receive a
distribution of a number of Shares equal to your remaining Excess Shares as soon
as administratively practicable after your death. If your beneficiary
predeceases you or if, for some reason, you have not designated a beneficiary,
your Excess Shares will be paid to your surviving spouse, or, if none, your
estate.
After you have read the attached amendment, please provide your consent to
the amendment, sign and date all three copies the amendment where indicated and
return it to Xxxxxxx Xxxx, Vice President and Controller, BankUnited, FSB. When
you do so, the amendment will become part of all of your outstanding Option
grants. Please note that consenting to this amendment does not obligate you to
make an irrevocable election to defer any future grants. You may only make such
an irrevocable election by completing the attached deferral election form and
returning it to Xxxxxxx Xxxx, Vice President and Controller, BankUnited, FSB,
within the applicable time in advance of an Option exercise.
If you have any questions, please call Xxxxxxx Xxxx at (000) 000-0000.
Sincerely,
/s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx Xxxxx
Senior Executive Vice President
and Chief Financial Officer
3
AMENDMENT TO ALL OUTSTANDING
NONQUALIFIED STOCK OPTION GRANTS TO
XXXXXX X. XXXXXX
UNDER
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION PLAN, THE
BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK OPTION PLAN, THE
BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK OPTION PLAN AND THE
BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK OPTION AND STOCK AWARD
PLAN
This AMENDMENT, dated as of April 1, 2002, is delivered by BankUnited
Financial Corporation (the "Company") to Xxxxxx X. Xxxxxx (the "Grantee").
1. All of the outstanding grants of nonqualified stock options
(collectively "the Options") held by the Grantee under the BankUnited, a Savings
Bank, Non-Statutory Stock 1986 Stock Option Plan, the BankUnited Financial
Corporation Non-Statutory 1992 Stock Option Plan, the BankUnited Financial
Corporation 1994 Incentive Stock Option Plan and the BankUnited Financial
Corporation 1996 Incentive Stock Option and Stock Award Plan (collectively the
"Plans") are hereby amended by adding a new Paragraph 5A immediately following
the existing Paragraph 5 as follows:
"5A. Exercise Deferral. Subject to the terms of Paragraphs 2 and 4
-----------------
hereof, the Grantee may irrevocably elect on a deferral election form
to be provided by the Committee to defer receipt of all or a portion
of the Excess Shares (as defined below) pursuant to the exercise of
the Option, subject to such rules and procedures as the Committee
deems appropriate. For purposes of this Paragraph, the Excess Shares
are the number of shares of Stock(rounded to the nearest share) equal
to (i) the excess of (x) the fair market value per share at the date
------
of exercise multiplied by the number of exercised shares over (y) the
----
aggregate exercise price of the shares so purchased, divided by (ii)
the fair market value per share at the date of exercise.
(a) Such deferral election form must be provided to the Committee or
its designee by the first day of September of the Company's
fiscal year (October 1 to September 30) prior to the beginning
of the Company's fiscal year in which the Option is exercised.
Notwithstanding the foregoing, the Grantee may elect to defer
the receipt of any Excess Shares distributable to the Grantee
for exercises of the Option that occur between May 1 and
September 30 of the fiscal year of the effective date of this
Amendment; provided that the Grantee returns a deferral election
form to the Committee or its designee prior to April 19, 2002.
(b) Any election hereunder shall apply only to the extent that
payment of the exercise price for the Option is satisfied by
surrender (including a constructive surrender) of shares of
unrestricted Stock owned by
the Grantee having a fair market value on the date of exercise
equal to the exercise price, provided that such shares have been
owned by the Grantee for at least six months prior to the
exercise and have not been constructively surrendered as payment
of an exercise price under the Plan in the six months prior to
exercise.
(c) In the event a cash dividend is declared and distributed with
respect to the Stock, the Company shall pay to the Grantee cash
in an amount equal to the amount of the aggregate cash dividend
that would have been distributed on the Stock represented by the
Excess Shares.
(d) Unless otherwise determined by the Committee, in the event of a
change in the Stock (as described in Paragraph 8), the number of
the Excess Shares shall be adjusted in the same manner as the
Stock is adjusted.
(e) The Grantee shall receive a number of shares of Stock equal to
the number of Excess Shares at such time and in such intervals as
specified on the Grantee's deferral election form. In no event
shall the date selected be earlier than the first to occur of
October 1, 2005 or the first day of the third fiscal year of the
Company following the fiscal year in which the Grantee made the
initial election on his deferral election form. The Grantee may
subsequently amend the intended date of distribution to a date
later than the date initially chosen for distribution by filing
an amendment with the Committee no later than twelve (12) months
prior to the initial distribution date. The Grantee may file an
amendment to defer receipt of the Excess Shares under this
subparagraph (e) only twice, and each amendment must provide for
a distribution of the Grantee's Excess Shares on a date that is
later than the distribution date the Grantee previously elected.
(f) In the event that the Grantee's employment with the Company
terminates prior to the date on which the Excess Shares would
otherwise be distributed, Shares will be distributed as soon as
administratively practicable after termination, without regard to
the Grantee's elections.
(g) In the event of a Change in Control of the Company (as defined in
Section 11 of the employment agreement dated April 1, 2002 by an
between the Grantee and the Company) prior to the date on which
the Excess Shares would otherwise be distributed, Shares will be
distributed as soon as administratively practicable after the
change in control, without regard to the Grantee's elections.
(h) Prior to the date the Grantee becomes entitled to any
distribution under this Paragraph 5A, the Grantee may request,
and the Committee, in its sole discretion, may approve, a
withdrawal of all or a portion of the Grantee's Excess Shares on
account of an unforeseeable financial emergency that
2
gives rise to an unexpected need for cash arising from illness,
casualty loss, sudden financial reversal, or another
unforeseeable occurrence (a "Hardship"). The Committee shall
review the Grantee's request and determine the extent, if any, to
which such request is justified. It is intended that the
Committee's determination as to whether the Grantee has suffered
a Hardship shall be made consistent with the requirements for an
"unforeseeable emergency," within the meaning of Section 457(d)
of the Code. Any such withdrawal shall be limited to the amount
reasonably necessary to meet the Hardship.
(i) In the event of the Grantee's death prior to the complete
distribution of his Excess Shares, a number of shares of Stock
equal to the number of Excess Shares shall be distributed to the
Grantee's beneficiary designated on the deferral election form in
a single distribution as soon as administratively practicable
following the Grantee's death. If the Grantee's beneficiary
predeceases the Grantee or if no beneficiary has been designated
then for purposes of this subparagraph (j), the Grantee's
beneficiary shall be his surviving spouse, or, if none, his
estate.
(j) The obligation of the Company under this Paragraph 5A shall
constitute a general, unsecured obligation, payable solely out of
general assets of the Company, and anything contained herein to
the contrary notwithstanding, until delivery of Shares is made to
the Grantee, or the Grantee's beneficiary hereunder, neither the
Grantee nor the Grantee's beneficiary shall have any right to, or
property interest in, any Shares or other specific assets of the
Company. However, the Company shall hold Shares equal to the
number of the Grantee's Excess Shares in the BankUnited Financial
Corporation Irrevocable Grantor Trust for the Benefit of Xxxxxx
X. Xxxxxx, an irrevocable grantor's trust established by the
Company for the purpose of paying such Shares to the Grantee in
accordance with the terms of this Paragraph 5A, subject to the
claims of the Company's creditors in the event of the insolvency
of the Company.
2. In all respects not amended, the Options are hereby ratified and
confirmed.
3
As evidence of the Grantee's consent to the adoption of the amendment set
forth herein, the Company and the Grantee have executed this Amendment as of the
date set forth below:
BANKUNITED FINANCIAL CORPORATION
BY: /s/ Xxxxxxxx X. Xxxxx
----------------------
March 20, 2002
-------------------------
Date
GRANTEE
/s/ Xxxxxx X. Xxxxxx
-------------------------
[Name]
March 20, 2002
-------------------------
Date
4
NONQUALIFIED STOCK OPTION
EXERCISE DEFERRAL ELECTION FORM
FOR OPTIONS GRANTED TO XXXXXX X. XXXXXX
UNDER
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK OPTION PLAN AND
THE BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK OPTION AND STOCK AWARD
PLAN
TO BE EXERCISED BETWEEN MAY 1, 2002 AND SEPTEMBER 30, 2002
Complete the following (any election to defer options to be exercised between
May 1, 2002 and September 30, 2002, must be made no later than April 19, 2002):
Pursuant to, and subject to the terms of, the amendment to my outstanding
nonqualified stock options dated April 1, 2002, I hereby irrevocably elect
to defer the Excess Shares attributable to any non-qualified stock option
exercised by me between May 1, 2002 and September 30, 2002, for the
specific grants indicated below:
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
Grant Date:_________ Expiration Date:__________ Purchase Price:__________
I elect to have the Excess Shares distributed to me on _________, ______
(must be no earlier than October 1, 2005), and understand that if I
terminate employment from BankUnited Financial Corporation prior to the
date I selected above, I will receive a distribution of the Excess Shares
after I terminate employment. I further understand that
2
if there is a Change in Control of BankUnited Financial Corporation prior
to (i) the date I selected above, or (ii) my termination of employment with
BankUnited Financial Corporation, as soon as administratively practicable
following such Change in Control I will receive a distribution of the
Excess Shares.
FORM OF DISTRIBUTION
I hereby elect to have any Excess Shares attributable to a deferred stock option
exercise paid to me in the following form:
[_] In a single distribution at the distribution time stated above .
[_] In substantially equal annual installments over a period of _________ years
(not more than 5) with the first installment being made at the distribution
time selected above and the remaining installments being made each
anniversary thereof.
BENEFICIARY DESIGNATION
Beneficiary to whom payment is to be made (as above specified) in the event
of my death before receiving payment of the entire balance of my Excess Shares:
___________________________ ______________________________
Name Address
Contingent Beneficiary to whom payment is to be made (as above specified) in the
event of my death before receiving payment of the entire balance of my Excess
Shares if the Beneficiary listed above dies before the entire balance of my
Excess Shares have been distributed.
___________________________ ______________________________
Name Address
3
This election supersedes any prior election I have made under the Plan.
GRANTEE SIGNATURE
________________________
[NAME]
Date:______________
Receipt Acknowledged:
By:____________________
Title:__________________ Date:__________________
4
NONQUALIFIED STOCK OPTION
EXERCISE DEFERRAL ELECTION FORM
FOR OPTIONS GRANTED TO XXXXXX X. XXXXXX
UNDER
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK OPTION PLAN AND
THE BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK OPTION AND STOCK AWARD
PLAN
TO BE EXERCISED BETWEEN OCTOBER 1, 2002 AND SEPTEMBER 30, 2003
Complete the following (any election to defer options to be exercised between
October 1, 2002 and September 30, 2003, must be made no later than September 1,
2002):
Pursuant to, and subject to the terms of, the amendment to my outstanding
nonqualified stock options dated April 1, 2002, I hereby irrevocably elect
to defer the Excess Shares attributable to any non-qualified stock option
exercised by me between October 1, 2002 and September 30, 2003, for the
specific grants indicated below:
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
Grant Date:________ Expiration Date:_________ Purchase Price:___________
I elect to have the Excess Shares distributed to me on _________, ______
(must be no earlier than October 1, 2005), and understand that if I
terminate employment from BankUnited Financial Corporation prior to the
date I selected above, I will receive a
2
distribution of the Excess Shares after I terminate employment. I further
understand that if there is a Change in Control of BankUnited Financial
Corporation prior to (i) the date I selected above, or (ii) my termination
of employment with BankUnited Financial Corporation, as soon as
administratively practicable following such Change in Control I will
receive a distribution of the Excess Shares.
FORM OF DISTRIBUTION
I hereby elect to have any Excess Shares attributable to a deferred stock
option exercise paid to me in the following form:
[_] In a single distribution at the distribution time stated above .
[_] In substantially equal annual installments over a period of _________ years
(not more than 5) with the first installment being made at the distribution
time selected above and the remaining installments being made each
anniversary thereof.
BENEFICIARY DESIGNATION
Beneficiary to whom payment is to be made (as above specified) in the event
of my death before receiving payment of the entire balance of my Excess Shares:
_________________________ _________________________
Name Address
Contingent Beneficiary to whom payment is to be made (as above specified) in the
event of my death before receiving payment of the entire balance of my Excess
Shares if the Beneficiary listed above dies before the entire balance of my
Excess Shares have been distributed.
_________________________ _________________________
Name Address
3
This election supersedes any prior election I have made under the Plan.
GRANTEE SIGNATURE
________________________
[NAME]
Date:______________
Receipt Acknowledged:
By:____________________
Title:__________________ Date:__________________
4
NONQUALIFIED STOCK OPTION
EXERCISE DEFERRAL ELECTION FORM
FOR OPTIONS GRANTED TO XXXXXX X. XXXXXX
UNDER
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION
PLAN,
THE BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK
OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK
OPTION PLAN; AND
THE BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK
OPTION AND STOCK AWARD PLAN
TO BE EXERCISED BETWEEN OCTOBER 1, 2003 AND SEPTEMBER 30, 2004
Complete the following (any election to defer options to be exercised between
October 1, 2003 and September 30, 2004, must be made no later than September 1,
2003):
Pursuant to, and subject to the terms of, the amendment to my outstanding
nonqualified stock options dated April 1, 2002, I hereby irrevocably elect
to defer the Excess Shares attributable to any non-qualified stock option
exercised by me between October 1, 2003 and September 30, 2004, for the
specific grants indicated below:
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
I elect to have the Excess Shares distributed to me on _________, ______
(must be no earlier than October 1, 2005), and understand that if I
terminate employment from BankUnited Financial Corporation prior to the
date I selected above, I will receive a
2
distribution of the Excess Shares after I terminate employment. I further
understand that if there is a Change in Control of BankUnited Financial
Corporation prior to (i) the date I selected above, or (ii) my termination
of employment with BankUnited Financial Corporation, as soon as
administratively practicable following such Change in Control I will
receive a distribution of the Excess Shares.
FORM OF DISTRIBUTION
I hereby elect to have any Excess Shares attributable to a deferred stock option
exercise paid to me in the following form:
[_] In a single distribution at the distribution time stated above .
[_] In substantially equal annual installments over a period of _________ years
(not more than 5) with the first installment being made at the distribution
time selected above and the remaining installments being made each
anniversary thereof.
BENEFICIARY DESIGNATION
Beneficiary to whom payment is to be made (as above specified) in the event
of my death before receiving payment of the entire balance of my Excess Shares:
_______________________________ _______________________________
Name Address
Contingent Beneficiary to whom payment is to be made (as above specified) in the
event of my death before receiving payment of the entire balance of my Excess
Shares if the Beneficiary listed above dies before the entire balance of my
Excess Shares have been distributed.
_______________________________ _______________________________
Name Address
3
This election supersedes any prior election I have made under the Plan.
GRANTEE SIGNATURE
________________________
[NAME]
Date:______________
Receipt Acknowledged:
By:_____________________
Title:__________________ Date:__________________
4
NONQUALIFIED STOCK OPTION
EXERCISE DEFERRAL ELECTION FORM
FOR OPTIONS GRANTED TO XXXXXX X. XXXXXX
UNDER
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION
PLAN,
THE BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK
OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK
OPTION PLAN AND
THE BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK
OPTION AND STOCK AWARD PLAN
TO BE EXERCISED BETWEEN OCTOBER 1, 2004 AND SEPTEMBER 30, 2005
Complete the following (any election to defer options to be exercised between
October 1, 2004 and September 30, 2005, must be made no later than September 1,
2004):
Pursuant to, and subject to the terms of, the amendment to my outstanding
nonqualified stock options dated April 1, 2002, I hereby irrevocably elect
to defer the Excess Shares attributable to any non-qualified stock option
exercised by me between October 1, 2004 and September 30, 2005, for the
specific grants indicated below:
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
Grant Date:__________ Expiration Date:___________ Purchase Price:________
I elect to have the Excess Shares distributed to me on _________, ______
(must be no earlier than October 1, 2005), and understand that if I
terminate employment from BankUnited Financial Corporation prior to the
date I selected above, I will receive a
2
distribution of the Excess Shares after I terminate employment. I further
understand that if there is a Change in Control of BankUnited Financial
Corporation prior to (i) the date I selected above, or (ii) my termination
of employment with BankUnited Financial Corporation, as soon as
administratively practicable following such Change in Control I will
receive a distribution of the Excess Shares.
FORM OF DISTRIBUTION
I hereby elect to have any Excess Shares attributable to a deferred stock option
exercise paid to me in the following form:
[_] In a single distribution at the distribution time stated above .
[_] In substantially equal annual installments over a period of _________ years
(not more than 5) with the first installment being made at the distribution
time selected above and the remaining installments being made each
anniversary thereof.
BENEFICIARY DESIGNATION
Beneficiary to whom payment is to be made (as above specified) in the event
of my death before receiving payment of the entire balance of my Excess Shares:
_______________________________ _______________________________
Name Address
Contingent Beneficiary to whom payment is to be made (as above specified) in the
event of my death before receiving payment of the entire balance of my Excess
Shares if the Beneficiary listed above dies before the entire balance of my
Excess Shares have been distributed.
_______________________________ _______________________________
Name Address
3
This election supersedes any prior election I have made under the Plan.
GRANTEE SIGNATURE
________________________
[NAME]
Date:______________
Receipt Acknowledged:
By:_____________________
Title:__________________ Date:__________________
4
BANKUNITED FINANCIAL CORPORATION
CONSTRUCTIVE EXERCISE OF OPTIONS
WITH
BANKUNITED FINANCIAL CORPORATION SHARES
FOR THE
THE BANKUNITED, A SAVINGS BANK, NON-STATUTORY 1986 STOCK OPTION
PLAN,
THE BANKUNITED FINANCIAL CORPORATION NON-STATUTORY 1992 STOCK
OPTION PLAN,
THE BANKUNITED FINANCIAL CORPORATION 1994 INCENTIVE STOCK
OPTION PLAN AND
THE BANKUNITED FINANCIAL CORPORATION 1996 INCENTIVE STOCK
OPTION AND STOCK AWARD PLAN
I, Xxxxxx X. Xxxxxx, hereby certify: (i) that I own ___________common
shares of beneficial interest of BankUnited Financial Corporation (the
"Shares"); (ii) that I have owned such Shares for at least six months; and (iii)
that I have not used such Shares to constructively exercise any options under
the BankUnited Financial Corporation stock option plans listed above within the
past six months.
_________________________
Grantee Signature
1
Stock Purchase Agreement
March 20, 2002
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Re: Sale of 23,887 Shares of Series B Preferred Stock of BankUnited
Financial Corporation to Xxxxxx X. Xxxxxx.
Dear Sir:
The undersigned, Xxxxxx X. Xxxxxx (the "Buyer"), hereby agrees with
BankUnited Financial Corporation (the "Company") as follows:
1. Sale of the Shares. The Buyer hereby agrees to buy from the Company,
and the Company hereby agrees to sell to the Buyer, in accordance with the terms
stated in this Agreement, 23,887 shares (the "Purchased Shares") of
Noncumulative Convertible Preferred Stock, Series B (the "Series B Preferred
Stock") of the Company. The sale of the Purchased Shares is being effected in
accordance with the resolutions of the Compensation Committee of the Board of
Directors dated March 20, 2002 to award to the Buyer the right, under Section
6(h) of the 2002 Stock Award and Incentive Plan, to purchase shares of Series B
Preferred Stock with a fair market value of $472,007.
2. Purchase Price. The purchase price per share for the Purchased Shares
is $19.76 per share. The total purchase price for the Purchased Shares shall be
$472,007, which shall be paid to the Company by the Buyer in cash at the time
that the Buyer executes this Agreement.
3. Delivery of Certificates Representing the Purchased Shares.
Certificates representing the Purchased Shares shall be delivered to the Buyer
as soon as practicable after the payment of the purchase price. On completion
of the sale of the Purchased Shares, the Purchased Shares will be validly
issued, fully paid and non-assessable.
4. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Company as follows:
(a) The Buyer is acquiring the Purchased Shares for his own account
for investment purposes only and not with a view to, or for resale in connection
with, any "distribution" thereof within the meaning of the Securities Act of
1933, as amended (the "Act").
1
(b) The Buyer understands that the Purchased Shares have not been
registered under the Act or the securities laws of any other state or
jurisdiction in reliance upon specific exemptions from registration thereunder,
and it agrees that its Purchased Shares may not be sold, offered for sale,
transferred, pledged, hypothecated or otherwise disposed of except in compliance
with the Act and applicable state securities laws. The Buyer has been advised
that the Company has no obligation and does not intend to cause the Purchased
Shares to be registered under the Act or to comply with any exemption under the
Act, including but not limited to that set forth in Rule 144 promulgated under
the Act, which would permit the Purchased Shares to be sold by the Buyer. The
Buyer understands that it is not anticipated that there will be any market for
resale of the Purchased Shares and that it may not be possible for the Buyer to
liquidate an investment in the Purchased Shares. The Buyer understands the
legal consequences of the foregoing to mean that it must bear the economic risk
of its investment in the Purchased Shares for an indefinite period of time.
(c) The Buyer understands that the certificates evidencing the
Purchased Shares will bear the following legends:
(i) The shares represented by this certificate have been
acquired directly or indirectly from the Issuer without having been
registered under the Securities Act of 1933, as amended (the "Act"), or the
securities or blue sky laws of any state or other jurisdiction, and are
"restricted securities," as that term is defined under Rule 144 promulgated
under the Act. The shares represented by this certificate may not be sold,
transferred, pledged, gifted, hypothecated or otherwise disposed of in any
manner, either in part or in whole (a "Transfer"), unless (i) they are
registered under the Act and the securities or blue sky laws of any
applicable state or other jurisdiction or (ii) the request for the Transfer
is accompanied by a favorable opinion of legal counsel for the Issuer
stating that the Transfer will not result in a violation of the Act and the
securities or blue sky laws of any applicable state or other jurisdiction;
(ii) The registered owner of the shares represented by this
certificate is an "affiliate" of the Issuer for purposes of the Securities
Act of 1933, as amended (the "Act"). Accordingly, the shares represented
by this certificate may not be transferred in any manner, either in part or
in whole (a "Transfer"), unless (i) they are registered under the Act and
the securities or blue sky laws of any applicable state or other
jurisdiction or (ii) the request for the Transfer is accompanied by a
favorable opinion of legal counsel for the Issuer stating that the Transfer
will not result in a violation of the Act and the securities or blue sky
laws of any applicable state or other jurisdiction; and
(iii) The shares represented by this certificate may not be
transferred in any manner (a "Transfer") unless (i) the Transfer complies
with the insider/employee trading policy of the Issuer (the "Policy"); and
(ii) the request for the Transfer is accompanied by a favorable opinion of
legal counsel for the Issuer stating that the Transfer will not result in a
violation of the Policy. A copy of the Policy is on file with the
Secretary of the Issuer and may be inspected during normal business hours
at the executive office of the Issuer.
2
(d) The Buyer has the financial ability to bear the economic risk of
an investment in the Shares, has adequate means of providing for his current
needs and personal contingencies, has no need for liquidity in such investment
and could afford a complete loss of such investment.
(e) The Buyer is the Chairman of the Board, Chief Executive Officer,
President and Chief Operating Officer of the Company, and has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in the Company.
(f) The Buyer understands that no federal or state agency has made
any finding or determination as to the fairness of an investment in, or any
recommendation or endorsement of, the Purchased Shares.
(g) The Buyer understands and agrees that the Company will direct the
Transfer Agent for the Purchased Shares to place a stop transfer instruction
against the certificate(s) representing the Purchased Shares and will instruct
such Transfer Agent to refuse to effect any transfer thereof in the absence of a
Registration Statement declared effective by the Securities and Exchange
Commission and any applicable state authorities with respect to the Purchased
Shares or an opinion of the Company's counsel that such transfer is exempt from
registration under the Act and any applicable other securities laws. The Buyer
understands that the Company is under no obligation whatsoever to furnish a
registration of the Purchased Shares under the Act or any applicable other
securities laws or to be registered under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or to remain subject to, or current in, any of
its reporting obligations under, the Exchange Act.
5. Adjustment for Stock Split. All references to the number of Purchased
Shares in this Agreement shall be appropriately adjusted to reflect any stock
split, stock dividend, recapitalization or other change in the Purchased Shares
which may be made by the Company after the date of this Agreement prior to the
issuance to the Buyer of certificates representing the Purchased Shares.
6. General Provisions.
(a) The laws of the State of Florida shall govern this Agreement.
This Agreement represents the entire Agreement between the parties with respect
to the purchase of the Purchased Shares by the Buyer and may only be modified or
amended in writing signed by all parties.
(b) Any notice, demand or request required or permitted to be given
be given by the parties hereto pursuant to the terms of this Agreement shall be
in writing and shall be deemed given when delivered personally or deposited in
the U.S. mail, First Class, with postage prepaid, and addressed to the parties
at the addresses of the parties set forth herein or such other address as a
party may notify the others in writing.
(c) Any party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions,
3
nor prevent that party thereafter from enforcing each and every other provision
of this Agreement. The rights granted both parties herein are cumulative and
shall not constitute a waiver of any party's right to assert all other legal
remedies available to such party under the circumstances.
(d) The Buyer agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purpose or intent of this
Agreement.
(e) This Agreement shall be binding upon and inure to the benefit of
the Buyer and his successors but shall not be assignable by the Buyer without
the prior written consent of the Company. This Agreement shall inure to the
benefit of the Company and shall be binding upon it and its successors and
assigns.
4
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
Buyer address:
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Accepted and agreed to
as of the above date.
BankUnited Financial Corporation
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
---------------------------------
Title: Senior Executive Vice President
--------------------------------
and Chief Financial Officer
-------------------------------
5
AGREEMENT TO EXCHANGE SHARES
March 20, 2002
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Re: Exchange of 104,715 shares of Class A Common Stock for of 70,001
Shares of Series B Preferred Stock
Dear Sir:
Whereas, BankUnited Financial Corporation (the "Company") has awarded
Xxxxxx X. Xxxxxx (the "Executive") the right under the Company's 2002 Stock
Award and Incentive Plan (the "Plan) the right to exchange shares of Class A
Common Stock owned by the Reporting Person for shares of Noncumulative
Convertible Preferred Stock, Series B (the "Series B Preferred Stock") issued
under the Plan, the executive hereby agrees with the Company as follows:
1. Exchange of the Shares. The Executive hereby agrees to exchange, and
the Company hereby agrees to deliver to the Executive, in accordance with the
terms stated in this Agreement, 104,715 shares Class A Common Stock (the
"Exchanged Shares") of the Company for 70,001 shares of Series B Preferred Stock
of the Company (the New Shares"), in accordance with the resolutions of the
Compensation Committee of the Board of Directors dated March 20, 2002 awarding
to the Executive the right, under Section 6(h) of the Plan, to so acquire the
New Shares.
2. Delivery of Certificates Representing the New Shares. Certificates
representing the New Shares shall be delivered to the Executive as soon as
practicable after the Executive's delivery of certificates evidencing the
104,715 shares of the Company' Class A Common Stock being tendered in exchange
therefor.
3. (a) The Executive understands that the New Shares have not been
registered under the Act or the securities laws of any other state or
jurisdiction in reliance
1
upon specific exemptions from registration thereunder, and it agrees that its
New Shares may not be sold, offered for sale, transferred, pledged, hypothecated
or otherwise disposed of except in compliance with the Act and applicable state
securities laws. The Executive has been advised that the Company has no
obligation and does not intend to cause the New Shares to be registered under
the Act or to comply with any exemption under the Act, including but not limited
to that set forth in Rule 144 promulgated under the Act, which would permit the
New Shares to be sold by the Executive. The Executive understands that it is not
anticipated that there will be any market for resale of the New Shares and that
it may not be possible for the Executive to liquidate an investment in the New
Shares. The Executive understands the legal consequences of the foregoing to
mean that it must bear the economic risk of its investment in the New Shares for
an indefinite period of time.
(b) The Executive understands that the certificates evidencing the
New Shares will bear the following legends:
(i) The shares represented by this certificate have been
acquired directly or indirectly from the Issuer without having been
registered under the Securities Act of 1933, as amended (the "Act"),
or the securities or blue sky laws of any state or other jurisdiction,
and are "restricted securities," as that term is defined under Rule
144 promulgated under the Act. The shares represented by this
certificate may not be sold, transferred, pledged, gifted,
hypothecated or otherwise disposed of in any manner, either in part or
in whole (a "Transfer"), unless (i) they are registered under the Act
and the securities or blue sky laws of any applicable state or other
jurisdiction or (ii) the request for the Transfer is accompanied by a
favorable opinion of legal counsel for the Issuer stating that the
Transfer will not result in a violation of the Act and the securities
or blue sky laws of any applicable state or other jurisdiction;
(ii) The registered owner of the shares represented by this
certificate is an "affiliate" of the Issuer for purposes of the
Securities Act of 1933, as amended (the "Act"). Accordingly, the
shares represented by this certificate may not be transferred in any
manner, either in part or in whole (a "Transfer"), unless (i) they are
registered under the Act and the securities or blue sky laws of any
applicable state or other jurisdiction or (ii) the request for the
Transfer is accompanied by a favorable opinion of legal counsel for
the Issuer stating that the Transfer will not result in a violation of
the Act and the securities or blue sky laws of any applicable state or
other jurisdiction; and
(iii) The shares represented by this certificate may not be
transferred in any manner (a "Transfer") unless (i) the Transfer
complies with the insider/employee trading policy of the Issuer (the
"Policy"); and (ii) the request for the Transfer is accompanied by a
favorable opinion of legal counsel for the Issuer stating that the
Transfer will not result in a violation
2
of the Policy. A copy of the Policy is on file with the Secretary of
the Issuer and may be inspected during normal business hours at the
executive office of the Issuer.
(c) The Executive understands and agrees that the Company will
direct the Transfer Agent for the New Shares to place a stop transfer
instruction against the certificate(s) representing the New Shares and
will instruct such Transfer Agent to refuse to effect any transfer
thereof in the absence of a Registration Statement declared effective
by the Securities and Exchange Commission and any applicable state
authorities with respect to the New Shares or an opinion of the
Company's counsel that such transfer is exempt from registration under
the Act and any applicable other securities laws. The Executive
understands that the Company is under no obligation whatsoever to
furnish a registration of the New Shares under the Act or any
applicable other securities laws or to be registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
to remain subject to, or current in, any of its reporting obligations
under, the Exchange Act.
4. Adjustment for Stock Split. All references to the number of New
Shares in this Agreement shall be appropriately adjusted to reflect any stock
split, stock dividend, recapitalization or other change in the New Shares which
may be made by the Company after the date of this Agreement prior to the
issuance to the Executive of certificates representing the New Shares.
5. General Provisions.
(a) The laws of the State of Florida shall govern this Agreement.
This Agreement represents the entire Agreement between the parties with respect
to the purchase of the New Shares by the Executive and may only be modified or
amended in writing signed by all parties.
(b) Any notice, demand or request required or permitted to be given
be given by the parties hereto pursuant to the terms of this Agreement shall be
in writing and shall be deemed given when delivered personally or deposited in
the U.S. mail, First Class, with postage prepaid, and addressed to the parties
at the addresses of the parties set forth herein or such other address as a
party may notify the others in writing.
(c) Any party's failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted both parties
herein are cumulative and shall not constitute a waiver of any party's right to
assert all other legal remedies available to such party under the circumstances.
3
(d) The Executive agrees upon request to execute any further
documents or instruments necessary or desirable to carry out the purpose or
intent of this Agreement.
(e) This Agreement shall be binding upon and inure to the benefit of
the Executive and his successors but shall not be assignable by the Executive
without the prior written consent of the Company. This Agreement shall inure to
the benefit of the Company and shall be binding upon it and its successors and
assigns.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
Executive address:
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Accepted and agreed to
as of the above date.
BankUnited Financial Corporation
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxx
---------------------------------
Title: Senior Executive Vice President
--------------------------------
and Chief Financial Officer
-------------------------------
4
AMENDMENT NO. 1
to the
RESTRICTED STOCK AWARD AGREEMENT
This Amendment No. 1 to the Restricted Stock Award Agreement (this
"Amendment") is attached to, and hereby made a part of, the BankUnited Financial
Corporation 1996 Incentive Compensation and Stock Award Plan Restricted Stock
Award Agreement (the "Restricted Stock Award Agreement") dated December 8, 2001
between BankUnited Financial Corporation (the "Company") and Xxxxxx X. Xxxxxx
(the "Employee"). This Amendment is effective as of March 20, 2002.
WHEREAS, the Employee was granted 70,000 shares of the Company's Class A
Common Stock (the "Restricted Stock") on December 8, 2002, subject to the
restrictions (the "Restrictions") stated in the Restricted Stock Award
Agreement; and
WHEREAS, pursuant to the terms of the Restricted Stock Award Agreement, the
Restrictions will expire on one-third of the total number of shares of
Restricted Stock on May 1 of each of the years 2002, 2003 and 2004
(rounding down to the nearest whole share and including the remainder on
the final expiration date); and
WHEREAS, the Employee filed an election under (S)83(b) of the Internal
Revenue Code with regard to the Restricted Stock; and
WHEREAS, the Company desires, and the Employee has agreed, to substitute
the Restricted Stock with restricted shares of the Company's Noncumulative
Convertible Preferred Stock, Series B (the "Series B Preferred Stock")
which have a value equal the Restricted Stock as determined by the
conversion ratio set by the Company's Articles of Incorporation for the
conversion of Series B Preferred stock into Class B Common Stock and Class
B Common stock into Class A Common Stock; and
WHEREAS, based on the conversion ratio of 1.4959, (one share of
Substituted Stock equals 1,4959 shares of the Restricted Stock), the
Restricted Stock will be substituted with 46,794 shares (the "Substituted
Stock") of Series B Preferred Stock issued under the Company's 2002 Stock
Award and Incentive Plan (the "2002 Plan"); and the restrictions and
vesting schedule that currently apply to the Restricted Stock will carry
over and continue to apply to the Substituted Stock; and
WHEREAS, the Company intends for the Substituted Stock to be merely a
substitution of the restricted property granted under the Restricted Stock
Award Agreement, and not a new grant of restricted stock, and for the 83(b)
election previously made on the Restricted Stock to apply to the
Substituted Stock.
NOW, THEREFORE, BE IT MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS:
The Company shall substitute the 70,000 shares of Restricted Stock with
46,794 shares of Substituted Stock, and the Substituted Stock shall consitute a
substitution of the property granted under the Restricted Stock Award Agreement.
The Substituted Stock is not intended as, and shall not be, a new grant of
restricted stock. The restrictions and vesting schedule originally stated in
the Restricted Stock Award Agreement for Restricted Stock shall be applied to
the Substituted Stock.
IN WITNESS WHEREOF, the parties to the Restricted Stock Award Agreement
have caused this Amendment to be executed as of the day and year first written
above.
BANKUNITED FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
EMPLOYEE
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Second Amended And Restated
Bank Employment Agreement
This Second Amended and Restated Employment Agreement ("Agreement") is
made and entered into effective as of April 1, 2002 by and between BankUnited,
FSB, a savings bank organized and operating under the federal laws of the United
states and having an office at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000
("Bank"), and Xxxxxx X. Xxxxxx, an individual residing in Pinecrest, Florida
("Executive"). any reference to the "Company" herein shall mean BankUnited
Financial Corporation.
W i t n e s s e t h :
--------------------
Whereas, the Company, the Bank and the Executive entered into an
Employment Agreement dated as of November 14, 1997 ("First Amended and Restated
Employment Agreement") pursuant to which the Executive has served as Chairman of
the Board, President and Chief Executive Officer and Chief Operating Officer of
the company and the Bank; and
Whereas, section 162(m) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the applicable regulations thereunder limits the
deduction that a corporation can take on its annual corporate tax return for
compensation paid to a corporation's chief executive officer to $1 million per
year; and
Whereas, the Company currently anticipates that the compensation
scheduled to be paid to the Executive will exceed the $1 million annual limit
under section 162(m) for fiscal years 2002, 2003, 2004 and 2006, resulting in
the Company's inability to deduct on its annual corporate tax return certain
amounts paid to the Executive; and
Whereas, the Executive has agreed to restructure his scheduled
compensation in order that the Company eliminate, to the extent possible,
adverse tax consequences in the form of non-deductible compensation under
section 162(m); and
Whereas, the Executive is willing to continue to serve in the employ
of the Bank on such basis; and
Whereas, the Bank and the Executive each hereby agree that in order to
achieve the foregoing objectives it is necessary to amend and restate the terms
and conditions of the First Amended and Restated Employment Agreement, as set
forth herein and for the Company to enter into a separate second amended and
restated employment agreement.
Now, Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Bank and the Executive
hereby agree as follows:
Page 1 of 17
Section 1. Employment.
The Bank agrees to continue to employ the Executive, and the Executive
hereby agrees to such continued employment, during the period and upon the terms
and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this Section 2
("Employment Period"). The Employment Period shall be for a term of three years
beginning on the date of this Agreement. Prior to the first anniversary of the
date of this Agreement and on or prior to each anniversary date thereafter
(each, an "Anniversary Date"), the Board of Directors of the Bank ("Board")
shall review the terms of this Agreement and the Executive's performance of
services hereunder and may, in the absence of objection from the Executive,
approve an extension of the Employment Agreement. In such event, the Employment
Agreement shall be extended to the third anniversary of the relevant Anniversary
Date.
(b) For all purposes of this Agreement, the term "Remaining Unexpired
Employment Period" as of any date shall mean the period beginning on such date
and ending on the Anniversary Date on which the Employment Period (as extended
pursuant to Section 2(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank at
any time from terminating the Executive's employment during the Employment
Period with or without notice for any reason; provided, however, that the
relative rights and obligations of the Bank and the Executive in the event of
any such termination shall be determined under this Agreement.
Section 3. Duties.
The Executive shall serve as the Chairman of the Board, the President
and Chief Executive Officer and the Chief Operating Officer of the Bank, having
such power, authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Bank and as are customarily associated
with such position. Except as provided in Section 7 hereof, the Executive shall
devote his full business 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 and shall use his best
efforts to advance the interests of the Bank.
Section 4. Compensation.
In consideration for the services to be rendered by the Executive
hereunder, for the period commencing April 1, 2002 and ending September 30,
2002, the Bank shall pay the Executive no salary, but shall provide the
Executive with the opportunity to earn between Three Hundred Thousand and 00/100
Dollars ($300,000) and Five Hundred Thousand and 00/100 Dollars ($500,000) upon
the satisfaction of certain preestablished short-term compensation goals set by
Company. For the period commencing October 1, 2002 and continuing through
Page 2 of 17
September 30, 2005, in consideration for the services to be rendered by the
Executive hereunder, the Bank shall pay to him a salary at an annual rate of
Three Hundred Seventy-Five Thousand and 00/100 Dollars ($375,000), payable in
approximately equal installments in accordance with the Bank's customary payroll
practices for senior officers. In addition, for the period commencing October
1, 2002 and continuing through September 30, 2005, the Bank shall provide the
Executive with the opportunity to earn between Seven Hundred Thousand and 00/100
Dollars ($700,000) and One Million and 00/100 Dollars ($1,000,000) upon the
satisfaction of certain preestablished short-term compensation goals set by
Company. Prior to each Anniversary Date occurring during the Employment Period,
the Board shall review the Executive's annual rate of salary and may, in its
discretion, approve an increase therein. In addition to salary, the Executive
may receive other cash or stock compensation from the Bank 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. For purposes of
Section 9(b)(iv), the term "Salary" shall mean the aggregate value of the annual
rate of cash compensation and the fair market value, determined at the time of
grant, of the stock compensation paid to the Executive pursuant to this Section
4 hereof.
Section 5. Additional Employee Benefit Plans and Programs.
During the Employment period, the Executive shall be treated as an
employee of the Bank and shall be entitled to participate in, and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover similarly
situated executives of, the Bank, in accordance with the terms and conditions of
such employee benefit plans and programs and compensation plans and programs and
consistent with the Bank's customary practices. The Executive's estate or his
designee shall be the beneficiary of life insurance policies on the life of the
Executive having a face amount of at least $6,000,000.00.
Executive hereby agrees not to exercise any options (that are
otherwise exercisable) that will not expire during the period April 1, 2002
through September 30, 2005 to the extent an exercise would result in
nondeductible compensation to the Company under section 162(m) of the Code.
Executive further agrees to exercise options that will expire during the period
April 1, 2002 through September 30, 2005, to the extent that they are
exercisable, only pursuant to the option gain deferral technique that will not
result in the recognition of income to the Executive during such period. Shares
issued upon exercise pursuant to the option gain deferral technique shall be
referred to herein as "Deferred Option Shares." Notwithstanding the preceding,
in the event of a Change in Control of the Company (as defined in Section 11 of
this Agreement) or in the event of the termination of the Executive's employment
for any reason, the Executive may exercise any options in accordance with the
terms of the option agreements.
Page 3 of 17
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for a period of six (6) years
thereafter, 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 6 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
Employment Period and for a period of six (6) 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.
Section 7. Outside Activities.
During the Employment Period, it shall not be a violation of this
Agreement and shall not permit the Bank to terminate the Executive's employment
for Cause if the Executive engages in the activities described below or any
activities similar in nature and scope, so long as such activities do not
significantly interfere with the performance of the Executive's responsibilities
in accordance with this Agreement and do not constitute a violation of any
applicable law, rule, regulation or code of conduct or policy established by the
Bank and applicable to similarly situated executives: (i) engaging in the
practice of law, including, without limitation, as a member of the firm of
Camner, Xxxxxxx and Poller, Professional Association, (ii) serving on industry,
corporate, civic or charitable boards or committees, (iii) managing personal
investments (including, without limitation, family-controlled enterprises), or
(iv) investing in, advising or serving as an officer or director of other
corporations or business entities. It is expressly understood and agreed that to
the extent any such activities have been conducted by the Executive prior to the
date of this Agreement, the continued conduct of such activities (or the conduct
of activities similar in nature and scope) shall not thereafter be deemed to
interfere with the performance of the Executive's responsibilities to the Bank.
The Executive may also serve as an officer or director of the Company on such
terms and conditions as the Bank and the Company may mutually agree upon, and
such service shall not be deemed to materially interfere with the Executive's
performance of his duties hereunder or otherwise result in a material breach of
this Agreement.
Section 8. Working Facilities and Expenses.
The Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such other location
within Coral Gables at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and the Executive may mutually
agree upon. The Bank shall provide the Executive at his principal place of
employment with a private office, secretarial services and other support
services and facilities including, but not limited to, Internet and Bloomberg
Financial Market Commodities and News Access Subscriptions, cellular telephones,
pagers and a lap-top computer, suitable to
Page 4 of 17
his position with the Bank and necessary or appropriate in connection with the
performance of his assigned duties under this Agreement. The Bank shall provide
to the Executive for his exclusive use an automobile owned or leased by the Bank
which shall be a BMW 7 Series (or an automobile of similar stature and caliber),
to be used in the performance of his duties hereunder, including commuting to
and from his personal residence. The Bank shall reimburse the Executive for his
ordinary and necessary business expenses, including, without limitation, all
expenses associated with his business use of the aforementioned automobile, fees
for memberships in such clubs and organizations as the Executive and the Bank
shall mutually agree are necessary and appropriate for business purposes, and
his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, in each case upon presentation
to the Bank of an itemized account of such expenses in such form as the Bank may
reasonably require.
Section 9. Termination of Employment with Severance Benefits.
(a) The Executive shall be entitled to, and the Bank shall pay, the
severance benefits and amounts described in Section 9(b) in the event that his
employment with the Bank terminates during the Employment Period under any of
the following circumstances:
(i) The Executive's voluntary resignation from employment with the
Bank within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint or elect
or re-elect the Executive to the office of Chairman of the Board,
President and Chief Executive Officer and Chief Operating Officer of
the Bank; or
(B) the failure of the stockholders of the Bank to elect or re-
elect the Executive or the failure of the Board (or the nominating
committee thereof) to nominate the Executive for such election or re-
election; or
(C) the expiration of a thirty (30) day period following the
date on which the Executive gives written notice to the Bank of its
material failure, whether by amendment of the Bank's Organization
Certificate or By-Laws, action of the Board or the Bank's stockholders
or otherwise, to vest in the Executive the functions, duties, or
responsibilities prescribed in Section 3 of this Agreement, unless,
during such thirty (30) day period, the Bank cures such failure in a
manner determined by the Executive, in his discretion, to be
satisfactory; or
(D) the expiration of a thirty (30) day period following the
date on which the Executive gives written notice to the Bank of its
material breach of any term, condition or covenant contained in this
Agreement (including, without limitation any reduction of the
Executive's rate of base salary in effect from time to time and any
change in the terms and conditions of any compensation or benefit
program in which the Executive participates which, either individually
or together with other changes, has a material adverse effect on the
aggregate value of his total compensation package), unless, during
such thirty (30) day period, the
Page 5 of 17
Bank cures such failure in a manner determined by the Executive, in
his discretion, to be satisfactory; or
(E) the relocation of the executive offices of the Bank, a
distance of more than twenty-five (25) miles from its current Coral
Gables, Florida location; or
(ii) subject to the provisions of Section 10, the termination of the
Executive's employment by the Bank for any other reason; or
(b) Upon the termination of the Executive's employment with the Bank
under circumstances described in Section 9(a) of this Agreement, the Bank shall
pay and provide to the Executive (or, in the event of his death following such
termination of employment, provide to his estate):
(i) his earned but unpaid Salary (including, without limitation, all
items which constitute wages under applicable state law and the payment of
which is not otherwise provided for under this Section 9(b)) as of the date
of the termination of his employment with the Bank, such payment to be made
at the time and in the manner prescribed by law applicable to the payment
of wages but in no event later than thirty (30) days after termination of
employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Bank's officers and
employees;
(iii) continued group life, health (including hospitalization,
medical, major medical and any supplemental insurance coverages), dental,
accident and long term disability insurance benefits, in addition to that
provided pursuant to Section 9(b)(ii), and after taking into account the
coverage provided by any subsequent employer, if and to the extent
necessary to provide for the Executive and his dependents, for the
Remaining Unexpired Employment Period, coverage equivalent to the coverage
to which he would have been entitled under such plans (as in effect on the
date of his termination of employment, or, if his termination of employment
occurs after a Change in Control, on the date of such Change in Control,
whichever benefits are greater), if he had continued working for the Bank
during the Remaining Unexpired Employment Period at the highest annual rate
of Salary achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the Bank, subject
to the maximum insurance amount specified under the Bank's policies, and
with such continued coverages to be provided to the Executive at the Bank's
expense through COBRA or in any other manner determined by the Board to be
appropriate including, but not limited to, through the purchase of an
individual policy or policies;
(iv) within thirty (30) days following his termination of employment
with the Bank, a lump sum payment, in an amount equal to the dollar amount
of the value of the highest aggregate Salary (cash or stock) awarded to the
Executive during any one year of the five years preceding the Executive's
termination of employment with the Bank, multiplied by the number of years
in the Remaining Unexpired Employment Period,
Page 6 of 17
such lump sum to be paid (without discounting for early payment) in lieu of
all other payments of Salary provided for under this Agreement in respect
of the period following any such termination;
(v) within thirty (30) days following his termination of employment
with the Bank, a lump sum payment in an amount equal to the excess, if any,
of:
(A) the present value of the aggregate benefits to which he
would be entitled under any and all qualified and non-qualified
defined benefit pension plans maintained by, or covering employees of,
the Bank, if he were 100% vested thereunder and had continued working
for the Bank during the Remaining Unexpired Employment Period, such
benefits to be determined as of the date of termination of employment
by adding to the service actually recognized under such plans an
additional period equal to the Remaining Unexpired Employment Period
and by adding to the compensation recognized under such plans for the
year in which termination of employment occurs all amounts payable
under Sections 9(b)(i), (iv), (vii), (viii) and (ix); over
(B) the present value of the benefits to which he is actually
entitled under such defined benefit pension plans as of the date of
his termination;
where such present values are to be determined using the mortality tables
prescribed under section 415(b)(2)(E)(v) of the Code and a discount rate,
compounded monthly equal to the annualized rate of interest prescribed by
the Pension Benefit Guaranty Corporation for the valuation of immediate
annuities payable under terminating single-employer defined benefit plans
for the month in which the Executive's termination of employment occurs
("Applicable PBGC Rate");
(vi) within thirty (30) days following his termination of employment
with the Bank, a lump sum payment in an amount equal to the present value
of the additional employer contributions to which he would have been
entitled under any and all qualified and non-qualified defined contribution
plans maintained by, or covering employees of, the Bank, if he were 100%
vested thereunder and had continued working for the Bank during the
Remaining Unexpired Employment Period at the highest annual rate of
compensation achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the Bank, and
making the maximum amount of employee contributions, if any, required under
such plan or plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that corresponds to
the frequency with which employer contributions are made to the relevant
plan, equal to the Applicable PBGC Rate;
(vii) an amount equal to the dollar amount of the highest aggregate
cash or stock bonus and long-term or short-term cash or stock incentive
compensation plan payments paid to the Executive during any one year of the
five years preceding the event triggering the payment of benefits under
this Section 9(b), multiplied by the number of
Page 7 of 17
years in the Remaining Unexpired Employment Period. For purposes of this
subsection, the dollar amount of any stock bonus or stock incentive plan
payment shall be the fair market value of the stock on the date the bonus
or incentive payment is paid to the Executive;
(viii) at the election of the Bank or the Executive made within thirty
(30) days following the Executive's termination of employment with the
Bank, subject to the consent of the other party which shall not be
unreasonably withheld, upon the surrender of options or appreciation rights
issued to the Executive under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Bank, a lump sum
payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of
stock of the same class as the stock subject to the option or
appreciation right, determined as of the date of termination of
employment, over (II) the exercise price per share for such option or
appreciation right, as specified in or under the relevant plan or
program; multiplied by
(B) the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of this Section 9(b)(viii) and for purposes of determining the
Executive's right following his termination of employment with the Bank to
exercise any options or appreciation rights not surrendered pursuant
hereto, the Executive shall be deemed fully vested in all options and
appreciation rights under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Bank, even if he is
not vested under such plan or program;
(ix) at the election of the Bank made within thirty (30) days
following the Executive's termination of employment with the Bank, subject
to the consent of the Executive, which shall not be unreasonably withheld,
upon the surrender of any shares awarded to the Executive under any
restricted stock plan maintained by, or covering employees of, the Bank, a
lump sum payment in an amount equal to the product of:
(A) the fair market value of a share of stock of the same
class of stock granted under such plan, determined as of the date of
the Executive's termination of employment; multiplied by
(B) the number of shares which are being surrendered.
For purposes of this Section 9(b)(ix) and for purposes of determining the
Executive's right following his termination of employment with the Bank to
any stock not surrendered pursuant hereto, the Executive shall be deemed
fully vested in all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Bank, even if he is not vested
under such plan, except to the extent such restricted stock is subject to a
performance based vesting requirement designed to qualify as "qualified
performance-based compensation" under section 162(m) of the Code and the
applicable regulations thereunder;
Page 8 of 17
(x) with the following: (A) the personal use, at the Bank's expense
for the Remaining Unexpired Employment Period, of a late model automobile
comparable to that used by the Executive prior to his termination of
employment; (B) the right of the Executive to purchase, at book value, the
membership in up to two country clubs which the Bank has maintained for the
benefit of the Executive; (C) the transfer to the Executive of all life
insurance policies that the Bank then maintains on the life of the
Executive in accordance with Section 5 as part of his benefits; and (D) the
continued use, at the Bank's expense for the Remaining Unexpired Employment
Period, of the secretarial services, Internet and Bloomberg Financial
Market Commodities and News Access Subscriptions, cellular telephones,
pagers and the lap-top computer which had been provided to the Executive
immediately prior to his termination of employment; and
(xi) any and all deferred compensation, including Deferred Option
Shares, shall be released and paid to the Executive.
For the purpose of determining the highest Salary or aggregate compensation plan
payments used to calculate the lump sum payments specified in Sections 9(b)(iv)
and (vii), the value of all amounts of cash and stock awarded as Salary or paid
or awarded under a compensation plan in any year shall be included, regardless
of whether such amounts are paid or awarded in restricted form, subject to a
deferred compensation plan, held in a trust or subject to any other compensation
arrangement which delays full vesting or delivery of such compensation. The
Bank and the Executive hereby stipulate that the damages which may be incurred
by the Executive following any such termination of employment are not capable of
accurate measurement as of the date first above written and that the payments
and benefits contemplated by this Section 9(b) constitute reasonable damages
under the circumstances and shall be payable without any requirement of proof of
actual damage and without regard to the Executive's efforts, if any, to mitigate
damages. The Bank and the Executive further agree that the Bank may condition
the payments and benefits (if any) due under Sections 9(b)(iii), (iv), (v),
(vi), (vii) and (x) on the receipt of the Executive's resignation from any and
all positions which he holds as an officer of the Bank, the Company or any
subsidiary or affiliate of either of them; provided that the Executive may elect
to remain as a non-chairman director on the Board of Directors, notwithstanding
his resignation as Chairman of the Board. The Bank may also condition such
payments and benefits on the Executive's making an offer to the Board of
Directors to resign as a director of the Bank or a member of a committee of the
Board; provided, however, that the Executive's resignation shall only be final
if all of the members of the Board vote to accept the offer, at the time the
offer is made. In no event shall any of the foregoing provisions of this
Section 9(b) entitle the Executive to additional grants of statutory or non-
statutory options to purchase shares of common stock of the Company pursuant to
any incentive stock option plan, then in effect.
Section 10. Termination without Additional Bank Liability.
In the event that the Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes
of this Agreement shall mean personal dishonesty, incompetence, willful
misconduct, breach of
Page 9 of 17
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease and desist order, or any material
breach of this Agreement, in each case as measured against standards generally
prevailing at the relevant time in the savings and community banking industry;
provided, however, that the Executive shall not be deemed to have been
discharged for cause unless and until the following procedures shall have been
followed:
(i) the Board shall adopt a resolution duly approved by affirmative
vote of a majority of the entire Board at a meeting called and held for
such purpose calling for the Executive's termination for cause and setting
forth the purported grounds for such termination ("Proposed Termination
Resolution");
(ii) as soon as practicable, and in any event within five (5) days,
after adoption of such resolution, the Board shall furnish to the Executive
a written notice of termination which shall be accompanied by a certified
copy of the Proposed Termination Resolution ("Notice of Proposed
Termination");
(iii) the Executive shall be afforded a reasonable opportunity to
make oral and written presentations to the members of the Board, on his own
behalf, or through a representative, who may be his legal counsel, to
refute the grounds set forth in the Proposed Termination Resolution at one
or more meetings of the Board to be held no sooner than fifteen (15) days
and no later than thirty (30) days after the Executive's receipt of the
Proposed Termination Notice ("Termination Hearings"); and
(iv) within ten (10) days following the end of the Termination
Hearings, the Board shall adopt a resolution duly approved by affirmative
vote of a majority of the entire Board at a meeting called and held for
such purpose (A) finding that in the good faith opinion of the Board the
grounds for termination set forth in the Proposed Termination Resolution
exist and (B) terminating the Executive's employment ("Termination
Resolution"); and
(v) as promptly as practicable, and in any event within one (1)
business day after adoption of the Termination Resolution, the Board shall
furnish to the Executive written notice of termination, which notice shall
include a copy of the Termination Resolution and specify an effective date
of termination that is not later than the date on which such notice is
given;
(b) The Executive's voluntary resignation from employment with the
Bank for reasons other than those specified in Section 9(a)(i);
(c) The Executive's death; or
(d) a determination that the Executive is eligible for long-term
disability benefits under the Bank's long-term disability insurance program or,
if there is no such program, under the federal Social Security Act;
then subject to the provisions of the next immediately succeeding sentence,
which shall be applicable in the event of the Executive's death, the Bank shall
have no further obligations under
Page 10 of 17
this Agreement, other than the payment to the Executive (or, in the event of his
death, to his estate) of his earned but unpaid Salary and any and all deferred
compensation, including Deferred Option Shares as of the date of the termination
of his employment, and the provision of such other benefits, if any, to which he
is entitled as a former employee under the employee benefit plans and programs
and compensation plans and programs maintained by, or covering employees of, the
Bank. In the event of the Executive's death, the payments and benefits described
in Sections 9(b)(ii), 9(b)(iii) and 9(b)(x)(A), (B) and (C) shall be provided to
the Executive's surviving spouse.
Section 11. Termination Upon or Following a Change in Control.
(a) A Change in Control of the Bank ("Change in Control") shall be
deemed to have occurred upon the happening of any of the following events:
(i) approval by the stockholders of the Bank of a transaction that
would result in the reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership interests of the
entity resulting from such transaction are beneficially owned (within
the meaning of Rule l3d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the
meaning of Rule l3d-3 promulgated under the Exchange Act) at least 51
% of the outstanding equity ownership interests in the Bank; and
(B) at least 51% of the securities entitled to vote generally
in the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same relative
proportions by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule l3d-3 promulgated under
the Exchange Act) at least 51 % of the securities entitled to vote
generally in the election of directors of the Bank;
(ii) the acquisition of all or substantially all of the assets of the
Bank or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the outstanding securities of the
Bank entitled to vote generally in the election of directors by any person
or by any persons acting in concert, or approval by the stockholders of the
Bank of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or approval
by the stockholders of the Bank of a plan for such liquidation or
dissolution;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the board of directors of the Bank do
not belong to any of the following groups:
Page 11 of 17
(A) individuals who were members of the Board of the Bank on the
date of this Agreement; or
(B) individuals who first became members of the Board of the
Bank after the date of this Agreement either:
(I) upon election to serve as a member of the Board of the
Bank by affirmative vote of three-quarters of the members of such
Board, or of a nominating committee thereof, in office at the
time of such first election; or
(II) upon election by the stockholders to serve as a member
of the Board, but only if nominated for election by affirmative
vote of three-quarters of the members of the Board, or of a
nominating committee thereof, in office at the time of such first
nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation 14a
promulgated under the Exchange Act) other than by or on behalf of the
Board of the Bank; or
(v) any event which would be described in Section 11(a)(i), (ii),
(iii) or (iv) if the term "Company" were substituted for the term "Bank"
therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or a subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this Section 11(a), the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change in Control, the Executive shall be
entitled to the payments and benefits contemplated by Section 9(b) in the event
of his termination of employment with the Bank under any of the circumstances
described in Section 9(a) of this Agreement or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any time
during the Employment Period and within ninety (90) days following his
demotion, loss of title, office or significant authority or responsibility,
or following any material reduction in any element of his package of
compensation and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any time
during the Employment Period and within ninety (90) days following (A) any
relocation of his principal place of employment outside of a twenty-five
(25) mile radius of the principal place of employment immediately prior to
the Change of Control that would require a relocation of his residence in
order to be able to commute to such new place of employment within a
commuting time not in excess of the greater of sixty (60) minutes
Page 12 of 17
or the Executive's commuting time prior to the Change of Control or (B) any
material adverse change in working conditions at such principal place of
employment; or
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following the failure of any successor to
the Bank in the Change of Control to include the Executive in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless the Executive is already covered by a
substantially similar plan of the Bank which is at least as favorable to
him.
Section 12. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Bank or by the Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time.
Section 13. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least
sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
Section 14. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Xx. Xxxxxx X. Xxxxxx
c/o Camner, Xxxxxxx and Poller, P.A.
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
with a copy to:
Page 13 of 17
Camner, Xxxxxxx and Poller, P.A.
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Managing Director
If to the Bank:
BankUnited, FSB,
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Compensation Committee of the Board of Directors
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Section 15. Indemnification for Attorneys' Fees.
The Bank shall indemnify, hold harness and defend the Executive
against reasonable costs, including legal fees, incurred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that the Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the Bank's
obligations hereunder shall be conclusive evidence of the Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
Section 16. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 17. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or
Page 14 of 17
power hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 18. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
Section 19. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of Florida
applicable to contracts entered into and to be performed entirely within the
State of Florida.
Section 20. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
Section 21. Entire Agreement; Modifications.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
Section 22. Required Regulatory Provisions.
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to the Executive under
Section 9(b) hereof (exclusive of amounts described in Section 9(b)(i)) exceed
the lesser of (i) three times the Executive's average annual total compensation
for the last five consecutive calendar years to end prior to his termination of
employment with the Bank (or for his entire period of employment with the Bank
if less than five calendar years) and (ii) the maximum amount that may be paid
without producing an "excess parachute payment" (as such term is defined in
section 28OG of the Code), the applicability of such provision to the Executive
and any such maximum amount to be determined in good faith by the firm of
independent certified public accountants regularly retained to audit the Bank's
books and records.
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. (S)1828(k),
and any regulations promulgated thereunder.
Page 15 of 17
(c) Notwithstanding anything herein contained to the contrary, if the
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a notice
served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U. S. C.
(S)1818(e)(3) or 1818(g)(1), the Bank's obligations under this Agreement shall
be suspended as of the date of service of such notice, unless stayed by
appropriate proceedings. If the charges in such notice are dismissed, the Bank,
in its discretion, may (i) pay to the Executive all or part of the compensation
withheld while the Bank's obligations hereunder were suspended and (ii)
reinstate, in whole or in part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if the
Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under section 8(e)(4) or
8(g)(1) of the FDI Act, 12 U.S.C. (S)1818(e)(4) or (g)(1), all prospective
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights and obligations of the Bank and the
Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Bank is in default (within the meaning of section 3(x)(1) of the FDI Act, 12
U.S.C. (S)1813(x)(1), all prospective obligations of the Bank under this
Agreement shall terminate as of the date of default, but vested rights and
obligations of the Bank and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated, except to the
extent that a continuation of this Agreement is necessary for the continued
operation of the Bank: (i) by the Director of the Office of Thrift Supervision
("OTS") or his designee or the Federal Deposit Insurance Corporation ("FDIC"),
at the time the FDIC enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in section 13(c) of the FDI
Act, 12 U.S.C. (S)1823(c); (ii) by the Director of the OTS or his designee at
the time such Director or designee approves a supervisory merger to resolve
problems related to the operation of the Bank or when the Bank is determined by
such Director to be in an unsafe or unsound condition. The vested rights and
obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Page 16 of 17
In Witness Whereof, the Bank has caused this Agreement to be executed
and the Executive has hereunto set his hand, all as of the day and year first
above written.
Attest: BankUnited, FSB
By /s/ Xxxxxx Xxxxxxxx-Xxxxx By /s/ Xxxxxxxx X. Xxxxx
------------------------- ---------------------
Secretary Name: Xxxxxxxx X. Xxxxx
Title: Senior Executive Vice
President and Chief
Executive Officer
[seal] The Executive
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
Page 17 of 17
