EXHIBIT 99.1
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the15th day
of April, 2001 by and between Xxxxx Xxxxxxxx (hereinafter "Xx. Xxxxxxxx" or the
"Executive") and BankUnited Financial Corporation, a Florida corporation
(hereinafter "BankUnited" or the "Company").
Recitals
A. Xx. Xxxxxxxx possesses intimate knowledge of, and experience in, the
banking industry generally and in South Florida in particular, derived in part
from successful service as President and Chief Operating Officer of BankUnited
and BankUnited, FSB from December 1998 to date. Xx. Xxxxxxxx was hired in 1998
to serve as President and Chief Operating Officer, was responsible for all lines
of business and all support functions, and was charged with managing the affairs
of BankUnited and Bank United, FSB on a day-to-day basis.
B. Unfortunately, Xx. Xxxxxxxx has suffered serious health problems
that make it impossible for him to perform the substantial and material duties
associated with managing the affairs of BankUnited and BankUnited, FSB on a
day-to-day basis or to continue to act as President and Chief Operating Officer.
C. However, Xx. Xxxxxxxx intends, to the extent his health and doctors
permit, to make a meaningful contribution to BankUnited in an alternative
capacity by offering counsel and providing strategy rather than running and
managing the business on a day-to-day basis.
D. As a consequence, Xx. Xxxxxxxx has relinquished his substantial and
material duties as President and Chief Operating Officer of BankUnited and
BankUnited, FSB and the parties agree to substitute this Agreement for their
respective rights and obligations under Xx. Xxxxxxxx'x prior Employment
Agreement.
E. The Board of Directors of BankUnited have determined that Xx.
Xxxxxxxx'x continued association with BankUnited and BankUnited FSB will be
critical to those entities' strategic positioning and ability to retain
employees, customers and customer relations which, in turn, are key ingredients
for ongoing success. Thus, the Board has also determined that it is in the best
interests of the BankUnited and its stockholders to assure that the BankUnited
will retain the services of Xx. Xxxxxxxx on its behalf and on behalf of
BankUnited, FSB, and to compensate him therefor.
F. Xx. Xxxxxxxx has been instrumental in changing and enhancing the
strategy and market position of BankUnited; therefore, BankUnited is concerned
that in the event of a possible or threatened Change in Control (as hereinafter
defined), uncertainties necessarily arise and Xx. Xxxxxxxx may have concerns
about his status, and may be approached by others offering competing
opportunities, and BankUnited therefore desires to provide Xx. Xxxxxxxx
assurances as to the continuation of his relationship with BankUnited in such
event. BankUnited further desires to assure that, if a possible or threatened
Change in Control should arise and if Xx. Xxxxxxxx should become involved in
deliberations or negotiations in connection therewith, Xx. Xxxxxxxx would be in
a secure position to consider and participate in such transaction as objectively
as possible in the best interests of BankUnited and, to this end, desires to
protect Xx. Xxxxxxxx from any direct or implied threat to his financial
well-being.
G. The Company on behalf of itself and its Shareholders also wishes to
retain well qualified key personnel and insure itself of continuity of its
management.
H. Xx. Xxxxxxxx is willing, to the extent his health and doctors
permit, to make his services exclusively available to BankUnited on the terms
and conditions hereinafter set forth, but desires assurance that in the event of
such a threatened or actual Change in Control he will continue to have economic
security in the form of either a continued position or fair and reasonable
severance protection on the basis of his service to the BankUnited through that
time.
I. The Board has determined that this Agreement will reinforce and
encourage Xx. Xxxxxxxx'x attention to the Company.
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NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Definitions. In addition to the words and terms defined elsewhere in
this Agreement, the following words and terms as used herein shall have the
meanings as set forth below, unless the context or use indicates a different
meaning:
(a) "Date of Termination" means the date of receipt of a Notice of
Termination or any later date specified therein, as the case may be; provided,
however, that if Xx. Xxxxxxxx'x engagement is terminated by reason of Xx.
Xxxxxxxx'x death, the Date of Termination shall be the date of Xx. Xxxxxxxx'x
death.
(b) "Notice of Termination" means a written notice of termination
for "Cause" which sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Mr. Ghomeshif or Cause and
includes the resolution of the Board regarding the termination of Xx. Xxxxxxxx
for Cause and its effective date.
(c) "Vested Benefits" means all amounts earned by and vested in Xx.
Xxxxxxxx pursuant to the plans, programs, policies and practices of BankUnited
including, but not limited to, the BankUnited Financial Corporation 401 K Plan,
the BankUnited Financial Corporation Profit Sharing Plan, and any existing Stock
Options or Securities Grants provided during the course of his employment by
BankUnited or BankUnited FSB or vesting pursuant to Xx. Xxxxxxxx'x 1998
Employment Agreement (as amended). The change of Xx. Xxxxxxxx'x duties,
responsibilities and role contemplated by this Agreement will not affect any
change in the existing vesting schedule of securities options or grants. A table
of existing Stock Grants and Options as of the execution of this Agreement is
appended hereto as Attachment 1. However, in the event of Xx. Xxxxxxxx'x death
or a "Change in Control" (as defined herein), all of Xx. Xxxxxxxx'x benefits
under the Company's 401 K Plan, as well as Stock Grants and Options, shall be
deemed a Vested Benefit.
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TERMS OF ENGAGEMENT
2.1. Engagement and Term. BankUnited hereby agrees to retain Xx.
Xxxxxxxx, and Xx. Xxxxxxxx hereby agrees to provide services to BankUnited, on
the terms and conditions set forth herein, for a period of fifteen (15) years
commencing on April 15, 2001 (hereinafter the "Commencement Date") and expiring
at the conclusion of May 31, 2016 ( the "Term") unless Xx. Xxxxxxxx resigns
prior to that date or is sooner terminated for Cause as hereinafter set forth.
2.2 Scope of Engagement. Xx. Xxxxxxxx shall serve as a member of the
Board of Directors of BankUnited Financial Corporation or as otherwise assigned
by the Chairman of the Board, and upon execution of this Agreement, will be
appointed the Executive Vice Chairman of the Board for an indefinite term and
Executive Vice Chairman of BankUnited, FSB. Xx. Xxxxxxxx'x status on the Board
or as an officer of BankUnited or BankUnited FSB may be changed from
time-to-time, as the Board shall determine in its sole discretion. Such changes
may include, by way of example but without limitation, appointment as Chairman
of the Advisory Committee to the Board or such standing or ad hoc Board
committees as the Board shall determine. To the extent his health and doctors
permit, Xx. Xxxxxxxx shall diligently perform all services as may be reasonably
assigned to him by the Board or its Chairman and shall exercise such power and
authority as may from time-to-time be delegated to him by the Board or its
Chairman. Xx. Xxxxxxxx shall be subject solely to the supervision and direction
of the Board or its Chairman. To the extent his health and doctors permit, Xx.
Xxxxxxxx shall devote substantially all of his available working time and
attention exclusively to the business and affairs of BankUnited and BankUnited,
FSB and shall render such services efficiently and to the best of his ability,
and shall use his best efforts to promote the interests of BankUnited. Nothing
herein shall prevent Xx. Xxxxxxxx from engaging in or pursuing his personal
investments or volunteer activities provided they are not proscribed by Section
9 herein and do not interfere with his duties on behalf of BankUnited or
BankUnited, FSB.
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3. Compensation.
3.1 Xx. Xxxxxxxx shall be compensated in installments, consistent
with BankUnited's normal compensation practices, as may be changed from time to
time with advance notice. Xx. Xxxxxxxx'x compensation entitlements, per year,
are as follows:
April 15, 2001 May 31, 2002 $425,000,
annualized,
+ Bonus (to
the extent applicable
for FY 2001 ending
September 30, 2001,
as determined by
the Chairman)
June 1, 2002 May 31, 2003 $180,000
June 1, 2003 May 31, 2004 $180,000
June 1, 2004 May 31, 2005 $180,000
June 1, 2005 May 31, 2006 $180,000
June 1, 2006 May 31, 2007 $130,000
June 1, 2007 May 31, 2008 $130,000
June 1, 2008 May 31, 2009 $130,000
June 1, 2009 May 31, 2010 $130,000
June 1, 2010 May 31, 2011 $130,000
June 1, 2011 May 31, 2012 $130,000
June 1, 2012 May 31, 2013 $130,000
June 1, 2013 May 31, 2014 $130,000
June 1, 2014 May 31, 2015 $130,000
June 1, 2015 May 31, 2016 $130,000
3.2 Compensation Reduction
If the Chairman of the Board, in his sole discretion, determines
that Xx. Xxxxxxxx is not satisfactorily performing the expected responsibilities
under this Agreement, for reasons other than Cause as defined
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in Section 5.1, the Chairman may reduce Xx. Xxxxxxxx'x compensation by 33.3
percent (33.3%) for the remaining term of this Agreement by providing Xx.
Xxxxxxxx on or after June 1, 2002 six months' written Notice of Intent to Reduce
Compensation. If the Chairman notifies Xx. Xxxxxxxx of BankUnited's intention to
reduce his compensation, Xx. Xxxxxxxx may notify the Chairman, in writing, of
his intention to terminate this Agreement. Such notice must be provided with a
minimum of sixty days notice prior to the implementation date of the proposed
compensation reduction. If Mr,. Ghomeshi serves written notice of termination,
BankUnited may, at its sole discretion, withdraw its intent to reduce
compensation in which case Xx. Xxxxxxxx'x notice of termination will be voided.
If the Agreement is terminated under this paragraph, Xx. Xxxxxxxx shall be
relieved of the obligations of Section 9 of this Agreement.
4. Additional Benefits.
4.1 Expense Reimbursement. During the Term, BankUnited, upon the
submission of supporting documentation by Xx. Xxxxxxxx in a form sufficient to
permit deduction thereof under applicable tax law, shall promptly reimburse Xx.
Xxxxxxxx for all reasonable expenses actually paid or incurred by Xx. Xxxxxxxx
in the course of and pursuant to the business of BankUnited, including expenses
for entertainment and all travel and living expenses while away from home on
business or at the request of BankUnited, provided that such expenses are
incurred and accounted for in accordance with BankUnited's regular policies and
procedures.
4.2 Other Benefits. BankUnited shall continue in force comprehensive
group disability, major medical and hospitalization insurance coverages,
including dental coverage, for Xx. Xxxxxxxx and his dependents, and group life
insurance covering Xx. Xxxxxxxx (collectively, the "Policies"), which Policies
(or other equivalent benefits) BankUnited shall keep in effect at its sole
expense while this Agreement is in effect. The Policies to be provided by
BankUnited shall be on terms as determined by the Board. In addition, BankUnited
shall throughout the Term continue to pay premiums on the existing supplemental
Life Insurance policy maintained on behalf of Xx. Xxxxxxxx (Principal Mutual
Life Insurance Company, Policy No. 4013708) in the face amount of Two Million
Dollars ($2,000,000) or as reduced in accordance with the terms of the policy.
BankUnited's premium obligation shall not exceed $16,000 per annum. If this
Agreement expires at full Term, BankUnited (or any successor thereto) shall be
obligated at its sole expense during Xx. Xxxxxxxx'x lifetime up to his 65th
birthday to continue to provide or shall arrange to provide Xx. Xxxxxxxx with
comprehensive group medical and hospitalization insurance coverage or its
equivalent (including dental coverage), and will exercise its best efforts to
arrange for
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continued group disability insurance coverage and group life insurance coverage
under BankUnited's benefit plan or any successor's benefit plan or any other
available alternative, provided that there shall be no such obligation if Xx.
Xxxxxxxx is eligible for similar coverage under any other group plan provided by
his then employer. Both parties acknowledge that due to circumstances beyond
either party's control, such continuing disability and/or life insurance
coverages may not be available to Xx. Xxxxxxxx on a group basis. If group
coverage is not reasonably available, and the parties can locate individual
disability or life insurance policies for Xx. Xxxxxxxx, BankUnited will
contribute to the premiums for such insurance in an amount equal to Xx.
Xxxxxxxx'x pro rata cost of the group premium at the time of Xx. Xxxxxxxx'x
separation from BankUnited. Nothing paid to Xx. Xxxxxxxx under any plan or
arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the compensation payable to Xx. Xxxxxxxx pursuant to Section 3
of this Agreement.
4.3 Automobile Allowance. BankUnited shall provide Xx. Xxxxxxxx
with an automobile allowance of fifteen hundred dollars ($1,500) per month
through May 31, 2002. The automobile allowance is intended to compensate Xx.
Xxxxxxxx for wear and tear and, in addition, reimburse Xx. Xxxxxxxx for all
costs and expenses incurred by Xx. Xxxxxxxx by reason of the use of his personal
automobile for BankUnited business from time-to-time.
4.4 Country Club Membership. BankUnited shall pay Xx. Xxxxxxxx a
sum, each month, not to exceed $500 to defray any cost of dues for Xx.
Xxxxxxxx'x membership at a country club of his choice and such luncheon clubs as
he deems appropriate for the discharge of his duties on behalf of BankUnited.
5. Termination.
5.1 Termination for Cause. Notwithstanding anything contained herein
to the contrary, this Agreement may be terminated by BankUnited for Cause. As
used in this Agreement, "Cause" shall only mean (i) any action or omission of
Xx. Xxxxxxxx which constitutes a willful and material breach of this Agreement,
which is not cured within sixty (60) days after receipt by Xx. Xxxxxxxx, or his
designated representative, of specific written notice of same; or (ii) Xx.
Xxxxxxxx is convicted of a felony or enters a plea of guilty or nolo contendere
to a criminal act which is a felony; or (iii) Xx. Xxxxxxxx willfully and
materially breaches a fiduciary duty owed to BankUnited, for personal profit; or
(iv) Xx. Xxxxxxxx willfully and materially violates any law, rule, regulation
(other than traffic violations or similar offenses), or final cease and desist
order in connection with his performance
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of services for BankUnited. Notwithstanding the foregoing, Xx. Xxxxxxxx shall
not be deemed to be terminated for Cause unless and until:
(a) the Board first holds a meeting, as to which Xx. Xxxxxxxx
was provided thirty (30) days advance notice and an opportunity to be heard, and
the Board delivers written notice to Xx. Xxxxxxxx specifying in detail the
action or inaction alleged to constitute Cause and demanding that he remedy such
action or inaction; and
(b) Xx. Xxxxxxxx shall not have remedied such action or inaction
allegedly constituting Cause within sixty (60) days after his receipt of such
written notice; and
(c) there shall have been delivered to Xx. Xxxxxxxx a Notice of
Termination and a certified copy of a resolution duly adopted by the affirmative
vote of at least a majority of the Board (excludingMr. Ghomeshi) 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, Xx. Xxxxxxxx'x action or inaction constituted Cause and he did not
remedy such action or inaction after demand by the Board.
Nothing in Section 5.1(b) shall, prior to delivery of a Notice of
Termination as provided herein, be deemed to suspend or extinguish Xx.
Xxxxxxxx'x entitlement to receive the compensation and other benefits provided
under Sections 3, 4, 5.2 and 6. In the event that the Company terminates Xx.
Xxxxxxxx for Cause and, within 30 days after receipt of the Notice of
Termination, Xx. Xxxxxxxx notifies the Company that he disputes such
termination, Xx. Xxxxxxxx shall still be subject to the obligations set forth in
Section 2 and entitled to receive the compensation provided under Sections 3, 4,
5.2 and 6 until a final and binding judgment is rendered by a court of competent
jurisdiction finding that the termination was properly for Cause, or for a
period not to exceed twenty-four (24) months whichever occurs first. In the
event the termination is found to be properly for cause, all payments subsequent
to termination which Xx. Xxxxxxxx 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.
5.2 Termination for Death. This Agreement shall terminate
automatically upon Xx. Xxxxxxxx'x death. Upon a termination by reason of Xx.
Xxxxxxxx'x death, all benefits shall vest and
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BankUnited shall, within 15 days after the Date of Termination, pay to Xx.
Xxxxxxxx'x estate or beneficiaries as the case may be any unpaid compensation
accrued for periods prior to the Date of Termination. In addition, the proceeds
from the BankUnited group life insurance policy shall be paid to his personal
representative or such other persons as Xx. Xxxxxxxx may have designated in
writing as his beneficiary(s). Xx. Xxxxxxxx'x estate or beneficiaries as the
case may be will have one hundred eighty (180) days from the date of death
within which to exercise any stock options or grants.
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6. Change in Control.
6.1 Change in Control. A "Change in Control" shall be deemed to have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied:
(a) any person, as defined in Section 3(a)(9) of the Securities and
Exchange Act of 1934 ("Exchange Act"), as such term is modified in Sections
13(d) and 14(d) of the Exchange Act becomes the beneficial owner (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of BankUnited (not including in the securities beneficially owned by
such Person or securities acquired directly from BankUnited) representing 25% or
more of the combined voting power of BankUnited's then outstanding securities.
For purposes of this agreement, "person" shall exclude (A) any employee plan
established by any "Corporation", which for these purposes shall be deemed to be
BankUnited and any corporation, association, joint venture, proprietorship or
partnership which is connected with BankUnited either through stock ownership or
through common control, within the meaning of Sections 414(b) and (c) and 1563
of the Internal Revenue Code of 1986, as amended; (B) BankUnited or any of its
affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act); (C) an
underwriter temporarily holding securities pursuant to an offering of such
securities; (D) a corporation or other business entity owned, directly or
indirectly by stockholders of BankUnited in substantially the same proportions
as their ownership of BankUnited; or (E) Xxxxxx X. Xxxxxx or his family or a
group acting in concert with him or his family or on his behalf.
(b) the stockholders of BankUnited approve a merger or consolidation
of BankUnited with any other corporation other than (A) a merger or
consolidation that would result in the voting securities of BankUnited
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership of
any trustee or other fiduciary holding securities under an employee benefit plan
of any Corporation, at least 51% of the combined voting power of the voting
securities of BankUnited or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of BankUnited (or similar
transaction) in which no Person is or becomes the beneficial owner (as defined
in clause (a) above), directly or indirectly, of securities of BankUnited (not
including in the securities beneficially owned by such Person any securities
acquired directly from BankUnited) representing 25% or more of the combined
voting power of BankUnited's then outstanding voting securities;
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(c) the stockholders of BankUnited approve a plan of complete
liquidation of BankUnited or an agreement for the sale or disposition by
BankUnited of all or substantially all of BankUnited's assets, other than a sale
or disposition by BankUnited of all or substantially all of BankUnited's assets
to an entity, at least 75% of the combined voting power of the voting securities
of which are owned by persons in substantially the same proportions as their
ownership of BankUnited immediately prior to such sale; or
(d) any "Person" (as such term is defined in Sections 407(q)(9)(A)
and 408(a)(1)(G) of the National Housing Act of 1934, as amended [the "NHA"]) or
group of Persons, shall have acquired "control" (as such term is defined in
Sections 407(q)(9)(B) and 408(a)(2) of the NHA) of BankUnited.
6.2 Payments Upon a Change in Control. Upon the first date on which
a Change in Control occurs, at Xx. Xxxxxxxx'x sole election:
(a) Xx. Xxxxxxxx may be released from any obligations under this
Agreement, at his option, and shall be free to accept any offer by the surviving
entity on whatever terms and conditions as may be agreeable between the
surviving entity and Xx. Xxxxxxxx, or
(b) The surviving entity shall continue this Agreement in effect for
the remainder of its term, except that the compensation reduction option in
Paragraph 3.2 shall no longer apply.
(c) If Xx. Xxxxxxxx chooses not to provide continuing services to
the surviving entity, BankUnited shall pay Xx. Xxxxxxxx a sum equal to his
average annual compensation (defined as base salary and bonus) from BankUnited
for the three preceding years multiplied by three and the surviving entity
agrees to provide, at its expense, the other benefits described in Section 4.2
to Xx. Xxxxxxxx until Xx. Xxxxxxxx achieves his sixty fifth birthday or, if he
predeceases that date, medical insurance, as described in 4.2, shall be provided
to his dependents until he would have achieved his sixty-fifth birthday.
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(d) If there is no surviving entity, and the change in control
results from a liquidation, under Paragraph 6.1(c), Xx. Xxxxxxxx will be paid a
lump sum equal to an aggregation of his unpaid compensation under this Agreement
in accordance with the schedule set forth in Paragraph 3.1
6.3 Gross-Up of Termination Payments. The parties intend that (i)
the net amount retained by Xx. Xxxxxxxx (The "Net Termination Payment") upon the
receipt of the change in control termination payment, after reduction for and
payment of all applicable federal, state and local income and employment taxes
(the "Withholding Taxes") or the tax (the "Excise Tax") imposed by Section 4999
of the Internal Revenue Code of 1986 or any successor statute, rule or
regulation of similar effect (the "Code"), including interest and penalties, and
payable by or on behalf of Xx. Xxxxxxxx shall be an amount equal to three times
his average annual compensation (as defined in 6.2(c). This Section shall apply
to any Termination Payment or other compensation payment directly to Xx.
Xxxxxxxx or his estate. Accordingly, the Termination Payment shall include an
amount (the "Gross-Up Payment") sufficient that, after all Withholding Taxes and
Excise Tax payable by or on behalf of Xx. Xxxxxxxx in respect of the Termination
Payment and any other payments pursuant to the provisions of this Section
(including the cumulative effect of the Gross-Up Payment on Withholding Taxes
and Excise Tax), Xx. Xxxxxxxx will actually retain an amount equal to the Net
Termination Payment and will actually receive the value, without diminution for
Withholding Taxes or Excise Tax.
(a) In determining the Withholding Taxes payable by or on behalf of
Xx. Xxxxxxxx, Xx. Xxxxxxxx shall be deemed to pay federal, state and local
income taxes on the date of Termination, at the highest marginal rates imposed
on individuals under Section 1 of the Code, with respect to federal income
taxes, and at the highest marginal rates imposed under the laws of the state and
locale of Xx. Xxxxxxxx'x residence on the date of Termination, with respect to
state and local income taxes, as such laws are in effect during the calendar
year in which the date of Termination occurs. Such federal income taxes shall be
determined taking account of the maximum deduction permitted for the payment of
such state and local taxes. In addition, Xx. Xxxxxxxx shall be deemed to be
subject to only the tax imposed by Section 3101(b) of the Code.
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(b) In determining the Excise Tax payable by or on behalf of Xx.
Xxxxxxxx, all Termination Payment and shall be deemed to constitute "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code, except
to the extent that, in the opinion of tax counsel selected by BankUnited's
independent auditors and acceptable to Xx. Xxxxxxxx, such payments (in whole or
in part) do not constitute "parachute payments" within the meaning of Section
280G(b)(2)(A) of the Code, or represent reasonable compensation for services
actually rendered or to be rendered within the meaning of Section 280G(b)(4) of
the Code.
(c) [Intentionally Deleted]
(d) In the event the amount or amounts of the Excise Tax or
Withholding Taxes are subsequently determined to be less the amounts taken into
account hereunder at the time of the payment of the Gross-Up Payment, Xx.
Xxxxxxxx shall repay BankUnited the Company the portion of such payment
attributable to such reduction, taking into account the effect of any deductions
allowable to the Executive for such repayment, consistent with the provisions of
Paragraph (a) of this Section.
(e) Xx. Xxxxxxxx shall notify the Company in writing of any claim by
the Internal Revenue Service or any other taxing authority (collectively, the
"IRS") that, if successful, would require the payment by the Company of a
Gross-Up Payment (other than a Gross-Up Payment previously paid). Such
notification shall be given as soon as practicable but no later than ten (10)
business days after Xx. Xxxxxxxx is informed in writing of such claim, and shall
apprise the Company of the nature of such claim and the date on which such claim
is requested to be paid. Xx. Xxxxxxxx shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice
to BankUnited (or such shorter period ending on the date that any payment of
taxes with respect to such claim is due). If BankUnited notifies Xx. Xxxxxxxx in
writing prior to the expiration of such period that it desires to contest such
claim, Xx. Xxxxxxxx shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
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(ii) take such action in connection with contesting such claim as
the Company reasonably requests in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively
to contest such claim; and
(iv) permit the Company to participate in any proceeding relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall idemnify and hold the Executive harmless,
on an after-tax basis, for any Withholding Taxes or Excise Tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Paragraph (e), BankUnited shall control all
proceedings taken in connection with such contest and may, as its sole option,
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect to such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
result or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company may determine; provided, however, that the Company directs the Executive
to pay such claim and xxx for a refund, the Company shall advance the amount of
such payment to the Executive, on an interest free basis, and shall indemnify
and hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income tax (including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect to
such advance; and further provided that the Executive shall not be required to
extend the statute of limitations relating to payment of taxes for the taxable
year of the Executive with respect to such contested amount is claimed to be due
except with respect to such contested amount. Further, BankUnited's control of
the contest shall be limited to issues with respect to which a Gross-Up payment
would be payable hereunder and Xx. Xxxxxxxx shall be entitled to settle or
contest, as the case may be, any other issue raised by the IRS.
(f) If, after the receipt by Xx. Xxxxxxxx of an amount advanced by the
Company pursuant to Paragraph (e)(iv), Xx. Xxxxxxxx becomes entitled to receive
any refund or credit with respect to such contested
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claim, Xx. Xxxxxxxx shall (subject to the Company's complying with the
requirements of Paragraph (e)(iv) promptly pay to the Company the amount of such
refund or credit (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by Xx. Xxxxxxxx of any such
advance, a determination is made that Xx. Xxxxxxxx shall not be entitled to any
refund with respect such contested claim, and the Company does not notify Xx.
Xxxxxxxx in writing of its intent to contest such determination within thirty
(30) days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and shall be an offset against the amount of
Gross-Up Payment required to be paid.
(g) This Section shall not apply to any entitlement to stock options,
stock grants or other securities of the Company.
7. Regulatory Considerations.
Notwithstanding anything herein to the contrary, any payments to Xx.
Xxxxxxxx by BankUnited, whether pursuant to this Agreement or otherwise, are
subject to and conditioned on compliance with Section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. ss. 1828(k) and any regulations promulgated
thereunder.
8. Withholding. BankUnited may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulations.
9. Non-Competition.
9.1 Xx. Xxxxxxxx acknowledges that during the term of his previous
employment with BankUnited and during the Term of this Agreement, he has learned
or will learn or be privy to valuable confidential business information, and he
has developed and cultivated on behalf of BankUnited substantial relationships
with past, present and prospective business customers of BankUnited. During the
term of this Agreement with BankUnited, and thereafter, Xx. Xxxxxxxx will not,
directly or indirectly, use or disclose to anyone, or authorize disclosure of
any confidential information or trade secrets except for the benefit of
BankUnited.
9.2 Xx. Xxxxxxxx acknowledges that the confidentiality of the
protected information with which Xx. Xxxxxxxx has been or may become privy is
essential and proprietary to BankUnited and is owned and
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shall continue to be owned by BankUnited. Xx. Xxxxxxxx agrees that at the
termination of his employment, for whatever reason, he will return to BankUnited
immediately any and all documents in whatever form that are in his possession or
control and that contain, reflect or refer to confidential information or trade
secrets.
9.3 During the Term of this Agreement and for 24 months following
the termination of this Agreement, if this Agreement is ended at less than full
term, except as otherwise approved in writing by the Chairman of the Board of
BankUnited, Xx. Xxxxxxxx shall not, either directly or indirectly, or for
himself or through, on behalf of, or in conjunction with any other person,
persons or legal entity, own, maintain, operate, engage in, assist, be employed
by, or have any interest in any business engaging or planning to be engaged in
banking or offering other financial services offered by BankUnited, in any
respect, within Palm Beach County, Broward County, Xxxxxxx County, Miami-Dade
County, or within a 50 mile radius of the County Courthouse of any other County
in which BankUnited has banking operations provided, however, that nothing in
this paragraph shall prevent ownership of up to 5% of any class of equity
securities that are traded publicly and provided further that Xx. Xxxxxxxx shall
not be restricted, outside the designated four county area, from providing other
financial services where BankUnited operations are limited solely to wholesale
or retail residential mortgage business.
9.4 During the Term of this Agreement and for a period of 24 months
thereafter, Xx. Xxxxxxxx shall not:
(a) either directly or indirectly, employ, retain the services of,
or seek to employ or retain the services of any person who is at that time or
was within the previous six months employed by, or providing services to
BankUnited or BankUnited, FSB, without the prior express written permission of
BankUnited, which BankUnited may in its absolute discretion withhold;
(b) either directly or indirectly solicit or contact customers of
BankUnited or BankUnited, FSB whose identity Xx. Xxxxxxxx learned while employed
by BankUnited, or Bank United, FSB which solicitation is for or on behalf of any
entity engaged in or seeking to be engaged in BankUnited's banking business or
in direct competition with BankUnited.
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9.5 Xx. Xxxxxxxx and BankUnited warrant that it is their intention
to agree to restrictions on disclosure of confidential information and on
competition that are as broad as permitted by Florida law and hereby agree to
subscribe to any expansion of the recited agreements as may be authorized by any
subsequent amendment to, or interpretation of Florida Statute Section 542.235
(2000) or any other Florida law. For purposes of this Non-Competition Agreement,
Xx. Xxxxxxxx shall be deemed retained by BankUnited during any period of time in
which he receives compensation from BankUnited or its successors.
9.6 Xx. Xxxxxxxx acknowledges that the provisions of Section 2 and
Section 9 are the essence of this Agreement for BankUnited and Xx. Xxxxxxxx
agrees that if he engages in activities prohibited by Section 9, irreparable
harm to BankUnited will likely result, for which a remedy in the form of damages
may not be ascertainable. Under such circumstances, Xx. Xxxxxxxx acknowledges
that BankUnited may seek temporary, preliminary or permanent injunctive relief
against him in any court of competent jurisdiction upon three days written
notice provided to the address listed in Section 14. This section shall not
limit any other legal or equitable remedies BankUnited or its successors may
have against Xx. Xxxxxxxx for violation of this Agreement.
10. Attorneys' Fees and Waiver. The Company shall pay reasonable costs
and attorneys' fees incurred by Xx. Xxxxxxxx in connection with any Board action
pursuant to Section 5.1 in the event that the Board does not determine that
"Cause" exists in accordance with the procedures in said Section. The Company
shall also indemnify, hold harmless and defend Xx. Xxxxxxxx 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 Xx. Xxxxxxxx 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 Xx. Xxxxxxxx'x 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. In consideration for
BankUnited's advancement of
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attorney's fees and litigation costs incurred by Xx. Xxxxxxxx in any action
against BankUnited under the terms of this Section, Xx. Xxxxxxxx hereby waives
any right he may have to a jury trial or punitive damages in any such
proceeding.
11. Enforcement Costs. The Company is aware that upon the occurrence of
a Change in Control, the Board of Directors or a stockholder of the Company may
then cause or attempt to cause the Company to refuse to comply with its
obligations under Section 6 of this Agreement, or may cause or attempt to cause
the Company to institute, or may institute, litigation seeking to have Section 6
of this Agreement declared unenforceable, or may take, or attempt to take, other
action to deny Xx. Xxxxxxxx the benefits intended under Section 6 of this
Agreement. In these circumstances, the purpose of this Agreement could be
frustrated. It is the intent of the parties that Xx. Xxxxxxxx not be required to
incur the legal fees and expenses associated with the protection or enforcement
of his rights under Section 6 of this Agreement by litigation or other legal
action because such costs would substantially detract from the benefits intended
to be extended to Xx. Xxxxxxxx hereunder, nor be bound to negotiate any
settlement of his rights hereunder under threat of incurring such costs.
Accordingly, if at any time after the Commencement Date, it should appear to Xx.
Xxxxxxxx that the Company is or has acted contrary to or is failing or has
failed to comply with any of its obligations under Section 6 of this Agreement
for the reason that it regards this Agreement to be void or unenforceable or for
any other reason, or in the event that the Company or any other person takes any
action to declare Section 6 of this Agreement void or unenforceable, or
institutes any litigation or other legal action designed to deny, diminish or to
recover from Xx. Xxxxxxxx the benefits provided or intended to be provided to
him under Section 6, and Xx. Xxxxxxxx has acted in good faith to perform his
obligations under this Agreement, the Company irrevocably authorizes Xx.
Xxxxxxxx from time to time to retain counsel of his choice at the expense of the
Company to represent him in connection with the protection and enforcement of
his rights under Section 6, including without limitation representation in
connection with his termination contrary to Section 6 of this Agreement or with
the initiation or defense of any litigation or other legal action, whether by or
against Xx. Xxxxxxxx or the Company or any director, officer, stockholder or
other person affiliated with the Company, in any jurisdiction. The reasonable
fees and expenses of counsel selected from time to time by Xx. Xxxxxxxx as
herein above provided shall be paid or reimbursed to Xx. Xxxxxxxx by the Company
on a regular, periodic basis upon presentation by Xx. Xxxxxxxx of a statement or
statements prepared by such counsel in accordance with its
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customary practices. Counsel so retained by Xx. Xxxxxxxx may be counsel
representing other officers or key executives of the Company in connection with
the protection and enforcement of their rights under similar agreements between
them and the Company, and, unless in his sole judgment use of common counsel
could be prejudicial to him or would not be likely to reduce the fees and
expenses chargeable hereunder to the Company, Xx. Xxxxxxxx agrees to use his
best efforts to agree with such other officers or executives to retain common
counsel.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
13. Non-Alienation. Xx. Xxxxxxxx shall not have any right to pledge,
hypothecate, anticipate, or in any way create a lien upon any amounts provided
under this Agreement, and no payments or benefits due hereunder shall be
assignable in anticipation of payment either by voluntary or involuntary acts or
by operation of law. So long as Xx. Xxxxxxxx lives, no person, other than the
parties hereto, shall have any rights under or interest in this Agreement or in
the subject matter hereof.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing, and shall be deemed to have been given when
delivered by hand or when deposited in the United States mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the BankUnited:
Xxxxxx X. Xxxxxx, Chairman
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
If to Xx. Xxxxxxxx:
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Xxxxx Xxxxxxxx
00000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other addresses as either party hereto may from time to time give
notice of to the other in the aforesaid manner.
15. Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in this Agreement shall not
affect the enforceability of the remaining portions of this Agreement or any
part thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases, sentences,
clauses or sections contained in this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted.
16. Guarantee. BankUnited hereby agrees to guarantee the payment by the
Bank of any benefits and compensation to which Xx. Xxxxxxxx is or may be
entitled to under the terms and conditions of the Agreement effective as of the
15th day of April, 2001 between the Bank and Xx. Xxxxxxxx, a copy of which is
attached hereto as Exhibit A ("Bank Agreement").
17. Successors; Binding Agreement.
17.1 Unless otherwise controlled by Article 6, the Company shall
require any successor to assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such acquisition had taken place and Xx. Xxxxxxxx agrees to continue to be
bound by this Agreement if such assumption occurs.
17.2 This Agreement shall inure to the benefit of and be
enforceable by Xx. Xxxxxxxx'x personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
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18. Non-duplication. In the event that Xx. Xxxxxxxx shall perform
services for the Bank or any other direct or indirect subsidiary of the Company,
any compensation, benefits or perquisites provided to Xx. Xxxxxxxx by such other
entity shall be applied to offset the obligations of the Company hereunder, it
being intended that this Agreement sets forth the aggregate compensation,
benefits and perquisites payable to Xx. Xxxxxxxx for all services to the Company
and all of its direct or indirect subsidiaries.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Entire Agreement, Modifications and Waiver. This Agreement
constitutes the entire agreement between BankUnited and Xx. Xxxxxxxx with
respect to its subject matter and supersedes all prior negotiations, agreements,
understandings and arrangements, both oral and written, between BankUnited and
Xx. Xxxxxxxx with respect to such subject matter including, but not limited to,
any employee manuals of BankUnited. No modification or waiver of any provision
of this Agreement shall be binding unless executed in writing by all parties
hereto. No waiver of any provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision (whether or not similar), nor shall
any such waiver constitute a continuing waiver. The failure of Xx. Xxxxxxxx or
BankUnited to insist upon strict compliance with any provision hereof shall not
be deemed to be a waiver of such provision or any other provision thereof.
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IN WITNESS WHEREOF, Xx. Xxxxxxxx and, pursuant to the authorization
from the Board, BankUnited Financial Corporation has executed this Agreement as
of the date first above written.
XXXXX XXXXXXXX BANKUNITED FINANCIAL
CORPORATION
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------------- -----------------------------
Name:
Title:
ATTEST: ATTEST:
By: /s/ Xxxx Xxxxxxx
--------------------------
Secretary
By: /s/ Xxxxx X. xx Xxxxxxx
-------------------------------
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Exhibit "1"
Options
Grant No. of Exercise
Date Shares Price Vested Unvested Date on which Remainder Vests
-----------------------------------------------------------------------------------------------------------------------
12/15/98 70,000 $7.125 52,500 17,500 December 15, 2001
-----------------------------------------------------------------------------------------------------------------------
2/17/99 600 7.031 600 - - - -
-----------------------------------------------------------------------------------------------------------------------
3/24/99 10,000 6.563 4,000 6,000 2,000 shares vest on March 24 of
each of 2002, 2003 & 2004
-----------------------------------------------------------------------------------------------------------------------
5/26/99 600 9.063 600 - - - -
-----------------------------------------------------------------------------------------------------------------------
5/27/99 50,000 8.813 - - 50,000 contingent based on share price
performance standards or no later
then May 27, 2008
-----------------------------------------------------------------------------------------------------------------------
8/25/99 600 9.719 600 - - - -
-----------------------------------------------------------------------------------------------------------------------
11/17/99 75,000 8.625 15,000 60,000 15,000 shares vest on November
17 of each of 2001, 2002, 2003 &
2004
-----------------------------------------------------------------------------------------------------------------------
10/25/00 75,000 7.50 - - 75,000 15,000 shares vest on October 25
of each of 2001, 2002, 2003,
2004 & 2005
-----------------------------------------------------------------------------------------------------------------------
Stock
Grant No. of
Date Shares Vested Unvested Date on which Remainder Vests
-----------------------------------------------------------------------------------------------------------------------
12/15/98 35,000 35,000 - - - -
-----------------------------------------------------------------------------------------------------------------------
3/24/99 8,000 3,200 4,800 1,600 shares vest on March 24 of each
of 2002, 2003 & 2004
-----------------------------------------------------------------------------------------------------------------------
10/25/00 10,000 - - 10,000 2,000 shares vest on October 25 of
each of 2001, 2002, 2003, 2004 &
2005
-----------------------------------------------------------------------------------------------------------------------
12/8/00 70,000 - - 70,000 23,333 shares vest on May 1 of each
of 2002, 2003 and 2004
-----------------------------------------------------------------------------------------------------------------------
