EXHIBIT 10.6
AMENDED AND RESTATED
COMPANY EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into effective as of November 14, 1997, 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 at 0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx 00000
("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, 1996 ("Prior Employment
Agreement") pursuant to which the Executive has served as Chairman of the Board,
President and Chief Executive Officer of the Company and the Bank; and
WHEREAS, the Company desires to assure for itself and for the
Bank the continued availability of the Executive's services and the ability of
the Executive to perform such services with a minimum of personal distraction in
the event of a threatened or pending Change in Control (as defined herein); 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 Prior Employment Agreement, as set forth
herein and for the Bank to enter into a separate 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.
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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 and the
President and Chief Executive 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. CASH COMPENSATION.
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 Thousand And 00/100 Dollars ($300,000), 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 hereof.
SECTION 5. 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. In lieu of Class A Common
Stock or Class B Common Stock, the Executive may, at his election, receive stock
options and/or stock awards granted pursuant to the 1996 Incentive Compensation
and Stock Award Plan in shares of BankUnited's Noncumulative Convertible
Preferred Stock, Series B ("Series B Stock"), adjusted to reflect the fair
market value of the Series B Stock as compared to the Class A Common Stock or
Class B Common Stock. 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 $4,000,000.00.
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.
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(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
Stuzin and Camner, 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 per-
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formance 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 740 (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 the severance benefits
described 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 re-appoint
or elect or re-elect the Executive to the office of Chairman
of the Board, President and Chief Executive Officer of the
Company;
(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;
(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, 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
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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 25 miles from its current
Coral Gables, Florida location.
(ii) subject to the provisions of section 10, the termination
of the Executive's employment by the Company for any other reason;
then, the Company shall provide the benefits and pay to the Executive the
amounts described in section 9(b).
(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 to his estate):
(i) his earned but unpaid compensation (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 or the Bank, as applicable;
(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, 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 Company or the Bank, as applicable 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 with such continued coverages to be provided to the
Executive at the Company's expense through COBRA or
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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 present value of the Salary that the Executive would have earned if
he had continued working for the Company or the Bank, as applicable
during the Remaining Unexpired Employment Period at the highest annual
Salary achieved during that portion of the Employment Period which is
prior to the Executive's termination of employment with the Company or
the Bank, as applicable, where such present value is to be determined
using a discount rate equal to the applicable short-term federal rate
prescribed under section 1274(d) of the Internal Revenue Code of 1986
("Code"), compounded using the compounding period corresponding to the
regular payroll periods of the Company or the Bank, as applicable for
its officers, such lump sum to be paid 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 or the Bank, as applicable,
if he were 100% vested thereunder and had continued working
for the Company or the Bank, as applicable 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
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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 or the Bank, as
applicable, if he were 100% vested thereunder and had continued working
for the Company or the Bank, as applicable 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 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) the payments that would have been made to the Executive
under any cash bonus or long-term or short-term cash incentive
compensation plan maintained by, or covering employees of, the Company
or the Bank, as applicable if he had continued working for the Company
or the Bank, as applicable during the Remaining Unexpired Employment
Period and had earned the maximum bonus or incentive award in each
calendar year that ends during the Remaining Unexpired Employment
Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was
ever available to the Executive under such incentive
compensation plan; multiplied by
(B) the salary that would have been paid to the
Executive during each such calendar year 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 Company:
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 made within thirty (30)
days following his termination of employment with the Company, 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 or the Bank, as
applicable, 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
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(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, upon the surrender of any shares awarded to the Executive
under any restricted stock plan maintained by, or covering employees
of, the Company or the Bank, as applicable, 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
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.
(x) In addition, the Company shall provide the Executive with
(A) personal use, at the Company 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 two $1 million life
insurance policies that the Company then maintains on the life of the
Executive as part of his benefits; and (D) continued use, at the
Company 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.
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
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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, director or committee member with respect to the Company, the Bank or
any subsidiary or affiliate of either of them. 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 felony or any crime involving moral turpitude; (C) the Executive
willfully fails or refuses to perform his duties under this Agreement
and fails to cure such breach within sixty (60) days following written
notice thereof from the Company; (D) the Executive breaches his
fiduciary duties to the Company for personal profit; or (E) the
Executive's willful 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, 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 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
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Executive shall not be deemed to be for "cause" within the meaning of section
10(a)(i) unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of three-fourths of
the non-employee members of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith opinion of the Board, the Executive is
guilty of the conduct described in section 10(a)(i) above, and specifying the
particulars thereof in detail.
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 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 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 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 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
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 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;
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(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 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
(II) 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 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 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:
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(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 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, 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
Page 13 of 19
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 the 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;
Page 14 of 19
SLI= the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable
state and local laws for the taxable year in
question; and
M = the highest marginal rate of Medicare tax
applicable to the Executive under the Code for the
taxable year in question.
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) the Executive under the terms of this Agreement, or
otherwise, and on which an excise tax under section 4999 of the Code will be
assessed, the payment determined under this section 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.
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.
Page 15 of 19
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
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000
WITH A COPY TO:
Stuzin & Camner
000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: XXXXXX XXXXXX, ESQ.
If to the Company:
BankUnited Financial Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: COMPENSATION COMMITTEE OF THE BOARD OF
---------------------------------------
DIRECTORS
---------
Page 16 of 19
WITH A COPY TO:
Xxxxxxx Xxxxxxxx & Wood
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: V. XXXXXX XXXXXXX, ESQ.
SECTION 17. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Company shall indemnify, hold harmless and defend the
Executive against rea sonable 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 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 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 14th day of November, 1997 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. /section/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.
------------------------------
XXXXXX X. XXXXXX
ATTEST: BANKUNITED FINANCIAL CORPORATION
By -------------------------
Secretary By ----------------------------
NAME:
TITLE:
[Seal]
Page 19 of 19
