Exhibit 10.4
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made as of the day of , 2003, between
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BANKUNITED FINANCIAL CORPORATION, a Florida corporation (the "Corporation"), and
Xxxxxxx X. Xxxxxxx ("Officer").
Recitals
WHEREAS, the Board of Directors of the Corporation has determined that it
is in the best interests of the Corporation and its shareholders to obtain the
services of the Officer;
WHEREAS, the Corporation wishes to engage the services of Officer as an
Executive Vice President of BANKUNITED, FSB (the "Bank");
WHEREAS, Officer is expected to make a significant contribution to the
management, profitability and growth of the Bank, and, consequently, of its
parent, the Corporation; and
WHEREAS, Officer is expected to possess 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 Officer 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 mean (i) Officer's refusal or failure to perform Officer's
material duties for the Corporation (other than a failure resulting from
Officer's incapacity due to physical or mental illness), which refusal or
failure has continued for a period of at least 30 days after a written notice of
demand for substantial performance, signed by a duly authorized officer of the
Corporation, has been delivered to Officer specifying the manner in which
Officer has refused or failed substantially to perform; (ii) an act(s) of
personal dishonesty, incompetence, or willful misconduct in connection with her
employment or the performance of services for or the handling of the affairs of
the Corporation or the Bank, (iii) the conviction of Officer for, or a plea of
guilty or nolo contendere to, a criminal act which is a felony, or which is a
misdemeanor involving theft, dishonesty or moral turpitude; (iv) the breach of a
fiduciary duty owed to the Corporation or the Bank involving personal profit or
intentional failure to perform stated duties,
or which could seriously prejudice the interest of the Corporation, the Bank,
its depositors, or shareholders; or (v) the breach or willful violation of any
law, rule, regulation, corporate policy (other than traffic violations or
similar non-material offenses), or final cease and desist order in connection
with her performance of services for the Corporation or the Bank, including, but
not limited to, federal and state securities laws.
b. 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
Exchange Act of 1934, as amended (the "Exchange Act"), as such term is modified
in Sections 13(d) and 14(d) of the Exchange Act, is or becomes the beneficial
owner (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Corporation representing 51% or more of the
combined voting power of the Corporation's then outstanding voting securities
(other than (A) any employee plan established by any "Corporation" which for
these purposes shall be deemed to be the Corporation and any corporation,
association, joint venture, proprietorship or partnership which is connected
with the Corporation 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) the Corporation 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 owned, directly or indirectly, by shareholders of the Corporation in
substantially the same proportions as their ownership of the Corporation or (E)
Xxxxxx X. Xxxxxx any member(s) of his family or an entity, person, or group
acting in concert with him or his family or on his behalf.
(b) the shareholders of the Corporation approve a merger of
consolidation of the Corporation with any other corporation other than (A) a
merger or consolidation that would result in the voting securities of the
Corporation 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 the Corporation or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation, or (B) a merger of
consolidation effected to implement a recapitalization of the Corporation (or
similar transaction ) in which no Person is or becomes the beneficial owner (as
defined in clause (a) above), directly or indirectly, of voting securities of
the Corporation or of the surviving entity of such merger or consolidation or
any parent thereof representing 51% or more of the combined voting power of the
Corporation's then outstanding voting securities or the Corporation or any
surviving entity or parent (other than Xxxxxx X. Xxxxxx or any member(s) of his
family or an entity, person, or group acting in concert with him or his family
or on his behalf); or
(c) the shareholders of the Corporation approve a plan of complete
liquidation of the Corporation or an agreement for the sale or disposition by
the Corporation of all or substantially all of the Corporation's assets, other
than a sale or disposition by the Corporation of all or substantially all of the
Corporation's assets to an entity, at least 75% of the combined
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voting power of the voting securities of which are owned by persons in
substantially the same proportions as their ownership of the Corporation
immediately prior to such sale.
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 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 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. "Disability" shall mean any physical or mental condition that prevents
the Officer from performing the essential function of her position for at least
three (3) months after the commencement of such condition and that is determined
to be of a permanent duration by a physician acceptable to the Corporation and
the Officer or the Officer's legal representative (such agreement as to
acceptability not to be unreasonably withheld). If the Corporation determines in
good faith that the Disability of the Officer has occurred, and that it cannot
reasonably accommodate the disability as defined by law it may give to the
Officer written notice of its intention to terminate the Officer's employment.
In such event, the Officer's
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employment with the Corporation shall terminate effective as of the Disability
Effective Date, provided that the Officer shall not have returned to full-time
performance of the Officer's duties prior to the Disability Effective Date. Any
subsequent different Disability shall not be deemed a continuation of a prior
Disability and, the determination of time periods for the purposes of this
provision shall recommence. Any dispute shall be resolved by arbitration as
provided in Section 24.
g. "Disability Effective Date" shall mean the thirty (30) days following
receipt by the Officer of notice from the Corporation of the Corporation's
intention to terminate the Officer's employment because of the Officer's
disability.
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 by the Bank without Cause, 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 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.
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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. c. or d. of this
Section 4, the Corporation shall pay to Officer any compensation, remuneration
or other benefits then owed to Officer, and any payout required by any such
subsections a., b., c. or d. 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, which
termination 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;
or
b. If Officer is employed by Employer on the Change in Control Date, the
Severance Payment shall be payable to Officer on the earliest of six (6) months
after the Change in Control Date, the date that the acquiring entity terminates
Officer for any reason regardless of when such termination occurs, or the date
that the Officer terminates employment as a result of any of the following
grounds, and upon payment in full thereof, this Agreement shall terminate:
(i) Officer has been assigned any duties inconsistent with her
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 her 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 she is entitled in accordance with Employer's normal vacation policy in
effect on the Change in Control Date.
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For purposes of determining Officer's right to receive the Severance
Payment pursuant to this subsection b, 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 b, 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 b; or
c. If Officer is employed by Employer on the Change in Control Date and
Officer determines to resign such employment, an amount equal to the annualized
amount of Officer's base salary as in effect on the Change in Control Date shall
be payable to Officer on the last day of Officer's employment provided that
Officer remains in the employ of the acquiring entity for a period not to exceed
six (6) months if the acquiring entity so requests in writing within one
business day of Officer's notice of decision to resign and upon payment in full
thereof, this Agreement shall terminate; 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.
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;
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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 Director of
the Office of Thrift Supervision or the Federal Deposit Insurance 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 her estate, survivors or heirs) may
have under any other contract, employee benefit plan or policy of Employer
except as expressly provided in this Agreement.
7. Arbitration.
a. All disputes under this Agreement shall be settled by arbitration in
Miami, Florida, before a single arbitrator pursuant to the employment 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
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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:
If to Officer:
Xxxxxxx X. Xxxxxxx, Executive Vice President
BankUnited, FSB
0000 X. X. 000xx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
If to the Corporation:
Xxxxxx X. Xxxxx, President
BankUnited Financial Corporation
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.
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b. All rights of Officer under this Agreement shall inure to the benefit of
and be enforceable by Officer and her personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Officer should die while any amount would still be payable to her
hereunder if she had continued to live, all such amounts, unless otherwise
provided, shall be paid in accordance with the terms of this Agreement to her
devisee, legatee or other designee or, if there be no such designee, to her
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. Notwithstanding the foregoing, this Agreement
does not supersede any benefits provided by the Corporation's employee benefit
plans, including, without limitation, the Corporation's stock option and stock
award plans, to employees, including the Officer, upon a change in control as
defined in such plans or as provided in any agreement relating to a specific
benefit or award under those plans.
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.
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
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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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
WITNESS: CORPORATION:
BankUnited Financial Corporation
By:
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Xxxxxx X. Xxxxx
President and Chief Operating Officer
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WITNESS: OFFICER:
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Xxxxxxx X. Xxxxxxx
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