Exhibit 10.10
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made as of the _______ day of _______, 1999, between
BANKUNITED FINANCIAL CORPORATION (the "Corporation"), and ____________
("Officer"), an employee and officer of the Corporation's wholly owned
subsidiary, BankUnited, FSB (the "Bank").
WHEREAS, Officer is employed by the Bank and currently holds the
position of Senior Vice President; and
WHEREAS, Officer has made and is expected to continue to make a
significant contribution to the management, profitability and growth of the
Bank, and, consequently, of its parent, the Corporation; and
WHEREAS, Officer possesses an intimate knowledge of the Bank's business
and affairs, including its policies, plans, methods, personnel and problems; and
WHEREAS, the Corporation and the Bank consider the continued employment
of Officer to be in the best interests of the Corporation, the Bank and the
shareholders of the Corporation, and desire to assure themselves of Officer's
continued services on an objective and impartial basis and without distraction
or conflict of interest in the event of any efforts to effect a change of
ownership or control of the Corporation and/or the Bank; and
WHEREAS, Officer is willing to remain in the employ of the Bank upon
the understanding that it will provide him with income security in the event of
a change in control of the Corporation and/or the Bank, upon the terms and
conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing, the Corporation and
Officer agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings set forth in this Section 1:
a. "Cause" shall include any of the following with respect to
Officer: a fraud, gross dishonesty, gross misconduct or breach of duty
perpetrated on Employer (as hereinafter defined); a criminal conviction for a
felony, fraud or theft; the imposition of any material sanction by any
regulatory or governmental agency governing Employer which sanction is imposed
against Officer or Employer solely by reason of the actions of Officer; or the
habitual use of alcohol or illegal drugs by Officer.
b. A "Change in Control" shall be deemed to have occurred upon
the first to occur, after the date hereof, of any of the following events with
respect to either the Corporation or the Bank (either of which, for purposes of
this subsection b., the "Target"):
(i) the acquisition in one or more transactions by
any "person" (as such term is defined in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or group of
persons of direct or indirect beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Target representing
twenty-five percent (25%) or more of the combined voting power of the Target's
then outstanding voting securities (the "Voting Securities"); provided, however,
that a change in control shall not be deemed to occur solely because twenty-five
percent (25%) or more of the Voting Securities is acquired by the Corporation,
any subsidiary of the Corporation, Xxxxxx X. Xxxxxx ("Xxxxxx") or a group of
persons including Camner and acting in conjunction with him;
(ii) the individuals who, as of the date hereof, are
members of the Board of Directors of the Target (the "Incumbent Board") cease
for any reason to constitute more than one-half (1/2) of the Board of Directors
of the Target; provided, however, that, if the election, or nomination for
election, by the Target's shareholders of any new director was approved by a
vote of more than one-half (1/2) of the Incumbent Board, such new director
shall, for purposes hereof, be considered a member of the Incumbent Board; or
(iii) the approval by the shareholders of the Target
of a (A) merger or consolidation involving the Target if the shareholders of the
Target immediately before such merger or consolidation do not own, directly or
indirectly immediately following such merger or consolidation, more than
one-half (1/2) of the combined voting power of the outstanding voting securities
of the corporation or other entity resulting from such merger or consolidation
in substantially the same proportion as their ownership of the Voting Securities
immediately before such merger or consolidation or (B) complete liquidation or
dissolution of the Target or an agreement for the sale or other disposition of
all or substantially all of the Target's assets.
c. The "Change in Control Date" shall be the later to occur of
the closing date or the effective date (as the case may be) of the transaction
or event resulting in the Change in Control.
d. "Employer" shall mean any one or more of the following with
respect to which Officer shall have been employed: the Corporation, the Bank
and/or a subsidiary or affiliate of the foregoing corporations, and/or any
successor thereto or subsidiary or affiliate of a successor thereto.
e. "Severance Payment" shall mean an amount equal to the sum
of :
(i) Officer's base salary as in effect on the Change
in Control Date; provided, however, that Officer's base salary as in effect on
the Change in Control Date shall be
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annualized, and provided further that, in the event that there occurs any
reduction in Officer's base salary and such reduction occurs (A) any time
commencing with the date sixty (60) days prior to the date on which the
Corporation, the Bank, Camner and/or a subsidiary or affiliate of the foregoing
persons entered into an oral or written, binding or nonbinding, agreement with a
third party to effect a Change in Control (an "Agreement to Effect a Change in
Control") or (B) any time within the sixty (60) day period ending on the Change
in Control Date where such Change in Control has been effected without the
entering into of an Agreement to Effect a Change in Control, then, for purposes
of determining the amount of the Severance Payment, such reduction shall be
disregarded and Officer's base salary as in effect immediately prior to such
reduction shall be used in lieu of Officer's base salary as in effect on the
Change in Control Date; and
(ii) the sum of all bonuses awarded to Officer in
respect of services rendered by Officer to Employer in the fiscal year of
Employer (the "Employer's Prior Fiscal Year") which immediately precedes the
fiscal year in which there occurs a Change in Control (collectively, "Officer's
Prior Year Bonus"); provided, however, that, in the event that there is entered
into an Agreement to Effect a Change in Control any time commencing with the
date one hundred twenty (120) days prior to the final day of the Employer's
Prior Fiscal Year or, absent the entering into of an Agreement to Effect a
Change in Control, the Change in Control Date shall occur within one hundred
twenty (120) days after the final day of the Employer's Prior Fiscal Year, then
there shall be included in the Severance Payment the greater of Officer's Prior
Year Bonus or the sum of all bonuses awarded to Officer in respect of services
rendered by Officer to Employer in the fiscal year immediately preceding the
Employer's Prior Fiscal Year.
f. "Transition Period" shall mean such period of time as the
Corporation may request Officer in writing to remain in the employ of Employer
after the Change in Control Date, not to exceed four (4) months after the Change
in Control Date.
2. OPERATION OF AGREEMENT. This Agreement shall be effective
immediately upon its execution; provided, however, that the Corporation shall
only be obligated to pay to Officer the Severance Payment in the event of a
Change in Control and upon the terms and conditions set forth in this Agreement.
3. TERMINATION OF AGREEMENT PRIOR TO A CHANGE IN CONTROL; EFFECT OF
AGREEMENT PRIOR TO OR FOLLOWING A CHANGE IN CONTROL.
a. This Agreement shall remain in full force and effect unless
and until the earlier of:
(i) its termination by the written agreement of the
parties hereto; or
(ii) the termination of Officer's employment with the
Bank and its subsidiaries and affiliates prior to a Change in Control (other
than a termination without Cause or due to Officer's death or disability, which
termination occurs (A) any time commencing with the date sixty (60) days prior
to the date on which there is entered into an Agreement to Effect a Change in
Control or (B) any time within the sixty (60) day period ending on the Change in
Control Date where
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such Change in Control has been effected without the entering into of an
Agreement to Effect a Change in Control), in which case this Agreement shall
terminate concurrently with the termination of Officer's employment and shall be
of no further force or effect.
b. Employer's employment rights and obligations with respect
to Officer are not affected by this Agreement prior to the occurrence of any
event which constitutes a Change in Control. Subject to any employment agreement
which may hereinafter be entered into between Officer and Employer, nothing
contained in this Agreement shall be deemed to (i) require or imply any
obligation on the part of Officer to continue in the employment of Employer
prior to or following a Change in Control, (ii) require or imply any right on
the part of Officer to continue in the employment of Employer prior to a Change
in Control or (iii) limit in any way the right of Employer to terminate the
employment of Officer, with or without Cause, at any time prior to a Change in
Control. Notwithstanding anything to the contrary herein, nothing in this
Section 3b. shall be construed to alter or limit in any way Employer's
obligations under Section 4 in the event of a Change in Control.
4. SEVERANCE PAYMENT FOLLOWING A CHANGE IN CONTROL. In the event that a
Change in Control occurs while this Agreement is in effect and there is
satisfied one of the conditions set forth in subsections a., b. or c. of this
Section 4, the Corporation shall pay to Officer the Severance Payment, in
addition to any other compensation, remuneration or other benefits then owed to
Officer, in one lump sum payment payable in full as described below:
a. If Officer is not employed by Employer on the Change in
Control Date due to the termination by Employer of Officer's employment without
Cause or cessation of Officer's employment due to his death or disability, which
termination or cessation of employment occurs (i) any time commencing with the
date sixty (60) days prior to the date on which there is entered into an
Agreement to Effect a Change in Control or (ii) any time within the sixty (60)
day period ending on the Change in Control Date where such Change in Control has
been effected without the entering into of an Agreement to Effect a Change in
Control, then the Severance Payment shall be payable to Officer on the Change in
Control Date and upon payment in full thereof, this Agreement shall terminate;
b. If Officer is employed by Employer on the Change in Control
Date and thereafter remains employed thereby during the entire Transition
Period, then the Severance Payment shall be payable to Officer on the final day
of the Transition Period and upon payment in full thereof, this Agreement shall
terminate;
c. If Officer is employed by Employer on the Change in Control
Date and, thereafter, such employment is terminated during the Transition Period
by Employer for any reason, or by Officer on or as a result of any of the
following grounds, then the Severance Payment shall be payable to Officer on the
final day of Officer's employment with Employer and upon payment in full
thereof, this Agreement shall terminate:
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(i) Officer has been assigned any duties inconsistent
with his position, duties, responsibilities and status with Employer as in
effect immediately prior to the Change in Control Date;
(ii) Employer has reduced Officer's annual salary or
other compensation or remuneration as in effect immediately prior to the Change
in Control Date;
(iii) Employer has required Officer to be based more
than fifty (50) miles from the offices where Officer was based immediately prior
to the Change in Control Date, except for required travel on Employer's business
to an extent substantially consistent with his previous business travel
obligations or, in the event that Officer consents to any such relocation,
Employer has failed to pay (or reimburse Officer for) all reasonable moving
expenses incurred; or
(iv) Employer has failed to continue in effect any
benefit, retirement or compensation plan, thrift and savings plan, stock bonus
plan, stock option/stock appreciation rights plan, life insurance plan, health
plan or disability plan in which Officer was participating on the Change in
Control Date (or plans providing substantially similar benefits), or Employer
has taken any action which would adversely affect (A) Officer's participation in
or materially reduce Officer's benefits under any of such plans or (B) any
material fringe benefit or perquisite enjoyed by Officer as of the Change in
Control Date, or Employer has failed to provide Officer with the number of paid
vacation days to which he is entitled in accordance with Employer's normal
vacation policy in effect on the Change in Control Date.
For purposes of determining Officer's right to
receive the Severance Payment pursuant to this subsection c., in the event that
there occurs any diminution in Officer's duties, annual salary or other
compensation or remuneration and/or entitlements under or with respect to such
plans, fringe benefits, perquisites or vacation days as are described in clause
(iv) of this subsection c., or any change in the office in which Officer is
based such that there occurs an increase in the distance of Officer's commute to
such office, and such diminution or change occurs (A) any time commencing with
the date sixty (60) days prior to the date on which there is entered into an
Agreement to Effect a Change in Control or (B) any time within the sixty (60)
day period ending on the Change in Control Date where such Change in Control has
been effected without the entering into of an Agreement to Effect a Change in
Control, such diminution and/or change shall be disregarded, and Officer's
duties, annual salary or other compensation or remuneration, entitlements and/or
base of employment immediately prior to such diminution or change shall be used
to determine Officer's right to receive the Severance Payment pursuant to this
subsection c.; or
d. If Officer is employed by Employer on the Change in Control
Date and, thereafter, Officer ceases to be employed by Employer due to Officer's
death or disability, then the Severance Payment shall be payable to Officer, or
Officer's estate or legal representative, as the case may be, within thirty (30)
days of such cessation of employment and upon payment in full thereof, this
Agreement shall terminate.
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5. CERTAIN REGULATORY CONSIDERATIONS. Notwithstanding anything in this
Agreement to the contrary:
a. any payments made to Officer pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12 U.S.C.
Sec. 1828(k) and any regulations promulgated thereunder;
b. if Officer is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Sections 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) or (g)(1)), (the "Act"), the obligations of the Corporation 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, then immediately upon such dismissal, the obligations hereunder of
the Corporation shall be reinstated, including, without limitation, the
obligation to pay to Officer the Severance Payment if a Change in Control has
occurred and irrespective of whether, as a result of the aforementioned
suspension or temporary prohibition which is subsequently dismissed, Officer has
failed to render such services to Employer during the Transition Period as may
have otherwise been required pursuant to this Agreement as a condition of
receiving the Severance Payment;
c. if Officer 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 (g)(1) of the Act (12 U.S.C. 1818 (e)(4) or (g)(1)), all
obligations of the Corporation hereunder shall terminate as of the effective
date of the order, but vested rights of the parties hereto shall not be
affected;
d. if the Bank is in default (as defined in Section 3(x)(1) of
the Act)(12 U.S.C. 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but this subsection d. shall not affect any
vested rights of the parties hereto; and
e. except to the extent determined by the Director of the
Office of Thrift Supervision or his/her designee (the "Director") that the
continuation of this Agreement is necessary for the continued operation of the
Bank, all obligations under this Agreement shall be terminated at the time that
(i) the Federal Deposit Insurance Corporation or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Bank under the authority contained in Section 13(c) of the Act (12 U.S.C.
1823(c)), (ii) the Director approves a supervisory merger to resolve problems
related to operation of the Bank or (iii) the Bank is determined by the Director
to be in an unsafe or unsound condition; provided, however, that any rights of
the parties hereto that have already vested shall not be affected by such
action.
6. EFFECT OF AGREEMENT ON OTHER RIGHTS. This Agreement shall not
diminish or enhance other rights which Officer (or his estate, survivors or
heirs) may have under any other contract, employee benefit plan or policy of
Employer except as expressly provided in this Agreement.
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7. ARBITRATION.
a. All disputes under this Agreement shall be settled by
arbitration in Miami, Florida, before a single arbitrator pursuant to the
commercial rules of arbitration (the "AAA Rules") of the American Arbitration
Association (the "AAA"). Arbitration may be commenced at any time by any party
hereto giving written notice (the "Arbitration Notice") to the other party that
such dispute has been referred to arbitration under this Section 7. The
arbitrator shall be selected by the joint agreement of the Corporation and
Officer, but if they do not so agree within 20 days after the date of the giving
of the Arbitration Notice, the selection shall be made pursuant to the AAA Rules
from the panels of arbitrators maintained by the AAA. Any award rendered by the
arbitrator shall be conclusive and binding upon the parties hereto and not
subject to appeal; provided, however, that any such award shall be accompanied
by a written opinion of the arbitrator giving the reasons for the award. This
provision for arbitration shall be specifically enforceable by the parties and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The expenses of the arbitrator shall initially be
shared equally by the parties; provided, however, that the arbitrator shall
award to the prevailing party all fees and expenses (including, without
limitation, attorneys' fees and expenses and expenses of the arbitrator)
incurred by such prevailing party in connection with the arbitration. The
prevailing party shall also be entitled to recover from the non-prevailing party
reasonable attorneys' fees (including, without limitation, all such fees, costs
and expenses incident to appellate, bankruptcy and post-judgment proceedings)
incurred as a result of any judicial proceedings relating to the specific
enforcement of this Section 7 or judgment upon the award rendered by the
arbitrator hereunder, in addition to any other relief to which the prevailing
party may be entitled. For purposes of this Section 7, "attorneys' fees" shall
include, without limitation, paralegal fees, investigative fees, administrative
costs and all other charges billed by the attorney to the prevailing party.
b. Notwithstanding subsection a. of this Section 7, to the
extent that arbitration of a dispute hereunder is not legally permitted such
that the parties to such dispute are prohibited at the time of such dispute from
mutually agreeing to submit such dispute to arbitration, either party may
commence a civil action in a court of appropriate jurisdiction to resolve such
dispute. The prevailing party in such proceedings shall be entitled to recover
from the non-prevailing party reasonable attorneys' fees (including, without
limitation, all such fees, costs and expenses incident to appellate, bankruptcy
and post-judgment proceedings) incurred in that action or proceeding, in
addition to any other relief to which such party may be entitled.
c. Nothing contained in this Section 7 shall prevent the
parties from settling any dispute by mutual agreement at any time.
8. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the continental United States by registered or
certified mail, return receipt requested, or personally delivered to the party
entitled thereto at the address stated below or to such changed address as the
addressee may have given by a similar notice:
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If to Officer:
______________
__________________
__________________
If to the Corporation:
Xxxxx Xxxxxxxx, President
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
9. SUCCESSORS; NONASSIGNABILITY.
a. Any successor (whether direct or indirect, by purchase,
merger or consolidation or otherwise) to all or substantially all of the
business or assets of the Corporation shall be bound by this Agreement in the
same manner and to the same extent as the Corporation as if no such succession
had taken place. As used in this Agreement, the term "Corporation" shall include
any successor to all or substantially all of the Corporation's business or
assets or which otherwise becomes bound by the terms and provisions of this
Agreement, whether by the terms hereof, by operation of law or otherwise. Except
as provided in this Section 9(a), this Agreement shall not be assignable by the
Corporation.
b. All rights of Officer under this Agreement shall inure to
the benefit of and be enforceable by Officer and his personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Officer should die while any amount would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided, shall be paid in accordance with the terms of this Agreement
to his devisee, legatee or other designee or, if there be no such designee, to
his estate.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements, understandings and representations, whether
oral or written, relating to such subject matter.
11. SEVERABILITY. The invalidity or unenforceablity of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
12. MODIFICATIONS; WAIVER. This Agreement may be modified, waived or
amended at any time prior to a Change in Control by written agreement signed by
Officer and the Corporation. Upon the occurrence of a Change in Control, no
provisions of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed by Officer and
by such officer of the Corporation as may be specifically authorized and
designated by the Board of Directors of the Corporation. No waiver by either
party at any time of any breach by the other party of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or any prior to or subsequent time.
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13. WITHHOLDING TAXES. The Corporation may withhold from the Severance
Payment all federal, state, city or other taxes as shall be required pursuant to
any law or governmental regulation or ruling.
14. GOVERNING LAW. The validity, interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Florida without giving effect to the principles of conflict of laws thereof.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, and
such counterparts will together constitute but one Agreement.
16. APPLICATION OF SECTION 280G OF THE INTERNAL REVENUE CODE. It is the
intention of the parties that, in the event of a Change in Control, the
Severance Payment shall not constitute "excess parachute payments" within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended, and
any regulations promulgated by the Internal Revenue Service thereunder. In the
event that the independent accountants acting as auditors for the Corporation on
the Change in Control Date (or another accounting firm designated by such
auditor and reasonably acceptable to Officer) determine that the Severance
Payment may constitute "excess parachute payments," the Severance Payment shall
be reduced to the maximum amount that may be paid without such Severance Payment
constituting "excess parachute payments." Such determination pursuant to this
Section 16 shall take into account (a) whether the payments under this Agreement
are "parachute payments" within the meaning of Section 280G and, if so, (b) the
portion of such Severance Payment which constitutes "reasonable compensation"
within the meaning of Section 280G. Nothing contained in this Agreement shall
prevent the Corporation after a Change in Control from agreeing with Officer to
pay Officer's compensation or benefits in excess of those provided in this
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
WITNESS: CORPORATION:
BANKUNITED FINANCIAL CORPORATION
_____________________________ By:______________________________
_____________________________
WITNESS: OFFICER:
_____________________________ _________________________________
____________
_____________________________
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