Exhibit 10.13
EMPLOYMENT AGREEMENT
(Change of Control)
This EMPLOYMENT AGREEMENT is made as of the 2nd day of November, 1998,
between BANKUNITED FINANCIAL CORPORATION (the "Corporation"), BANKUNITED, FSB, a
Federal Savings Bank ("Bank"), and XXXXXXXX X. XXXX, ("Officer"), an officer of
the Bank.
WHEREAS, Officer is employed by the Bank and currently holds the position
of Vice Chairman of the Board; 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 Bank considers the continued employment of Officer to be in
the best interests of the Bank, the Corporation and the shareholders of the
Corporation, and desires to assure itself 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
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 his
employment should be terminated without cause, or by him for good reason,
following a change in control of the Corporation, upon the terms and conditions
provided herein.
NOW, THEREFORE, in consideration of the foregoing, the Bank and officer
agree as follows:
1. Operation of Agreement; Position and Duties.
(a) This Agreement shall be effective immediately upon its execution.
Nevertheless, the Bank will be obligated to provide Officer the compensation and
benefits described in Section 5 only upon the occurrence of a "Change in
Control" of the Corporation. Upon such a Change in Control, all provisions of
this Agreement shall become operative immediately.
(b) The Officer shall serve as Vice Chairman of the Corporation and
the Bank and shall exercise such authority and perform such executive duties as
may from time to time be assigned to the Officer by the Board of Directors of
the Corporation and the Bank or the Chief Executive Officer of the Corporation
and the Bank. Such services shall be performed at the Corporation's principal
executive offices in Dade County, Florida, or at such other location as shall be
mutually agreed to by the parties. It is understood that the Officer shall not
be required to devote his full business time to his executive duties as
described herein, but will perform such duties faithfully and efficiently; and
that the Officer shall be engaged in other full-time employment; and may be a
director of other corporations and engage in charitable, civic and similar
pursuits.
2. Change in Control. A "Change in Control" of the Corporation shall be
deemed to have occurred if:
(a) "Change in Control" shall be deemed to have occurred on the date
when:
(i) A reorganization, merger or consolidation of the Corporation
shall have been consummated, in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of the Corporation's voting
securities would be converted into cash, securities or other property, other
than a merger of the Corporation in which the holders of the Corporation's
voting securities immediately prior to the merger have substantially the same
proportionate ownership of the voting securities of the surviving corporation
immediately after the merger;
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(ii) Liquidation or dissolution of the Corporation or Bank's, or
sale, lease, exchange or transfer (in one transaction or a series of related
transactions) of all or substantially all of the Corporation's or Bank's assets
shall have been consummated;
(iii) 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, excluding BankUnited and any of its subsidiaries,
other than Xxxxxx X. Xxxxxx or a group acting in concert with him, shall have
acquired direct or indirect beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Corporation representing 25%
or more of the voting power of the Corporation's then outstanding securities;
(iv) Any "person" (as such term is defined in Sections
407(q)(9)(A) and 408(a)(1)(G) of the National Housing Act of 1934, as amended
[the "NHA"]) or group of persons, shall have acquired "control" (as such term is
defined in Sections 407(q)(9)(B) and 408(a)(2) of the NHA) of the Bank.
3. Effect of Agreement Prior to a Change in Control; Termination of
Agreement Prior to a Change in Control.
(a) The Bank'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 of the Corporation.
(b) This Agreement shall remain in full force and effect unless and
until:
(i) it is terminated by the written agreement of the parties
hereto; or
(ii) the employment of the Officer with the Bank and its
subsidiaries and affiliates is terminated by the Officer or by
the Bank and its subsidiaries and affiliates, for any reason,
prior to a Change in Control of the Corporation, in which case
this Agreement shall terminate concurrently with the termination
of employment.
Nothing contained in this Agreement shall be deemed to require or imply any
obligation on the part of the Officer to continue in the employment of the Bank
or any of its subsidiaries or affiliates prior to or following a Change in
Control of the Corporation, or to require or imply any right on the part of the
Officer to continue in the employment of the Bank, the Corporation or any of
their subsidiaries or affiliates prior to a Change in Control of the
Corporation, or to limit in any way the right of the Bank to terminate the
employment of the officer, with or without cause, at any time prior to a Change
in Control of the corporation.
4. Termination Following a Change in Control. Following the occurrence of
any event which constitutes a Change in Control of the Corporation, the
provisions hereinafter set forth shall apply:
(a) Death. If officer dies prior to Notice of Termination being given,
his rights under this Agreement shall terminate upon his death.
(b) Disability. The Bank may terminate officer's employment under this
Agreement if, as a result of his incapacity due to accident or illness, officer
shall have been absent from his duties with the Bank for 150 consecutive
business days and, within 30 days after written Notice of Termination is given
by the Bank, he shall not have returned to the performance of his duties.
(c) Cause. The Bank may terminate Officer's employment under this
Agreement for Cause. For purposes of this Agreement, "Cause" means any action or
inaction of the Officer involving personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform the Executive's duties as described in Section 1, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses), or final cease-and-desist order, or material breach of any
provision of this Agreement.
For purposes of this Agreement, no act or failure to act on officer's part shall
be considered "willful" unless done, or omitted to be done, in bad faith and
without reasonable belief that his action or omission was in, or not opposed to,
the best interest of the Bank, its affiliates and subsidiaries.
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Notwithstanding the foregoing, Officer shall not be deemed to have been
terminated for Cause unless and until the Bank shall have delivered to him a
copy of a resolution duly adopted by the affirmative vote of a majority of the
entire membership of the Board of Directors of the Bank at a meeting called and
held for that purpose, after reasonable notice to Officer and an opportunity for
him, together with counsel, to be heard before the Board, finding that in the
good faith opinion of the Board he was guilty of conduct set forth above in
subparagraphs (i), (ii) or (iii) of this paragraph, and specifying the
particulars thereof in detail.
(d) Voluntary Termination by the Officer. Officer may terminate his
employment under this Agreement for Good Reason. For purposes of this Agreement,
"Good Reason" shall be deemed to exist under any of the following circumstances:
(i) Officer has been assigned any duties inconsistent with
his position, duties, responsibilities and status with the Bank
or the Corporation in effect immediately prior to a Change in
Control, or has been assigned reporting responsibilities, titles
or offices of a lesser scope than those in effect immediately
prior to a Change in Control, or he has been removed from, or not
re-elected to, any of such positions, except in connection with
the termination of his employment for Cause;
(ii) the Bank has reduced officer's base salary as in effect
immediately prior to a Change in Control or as the same may be
increased thereafter from time to time, or has failed to give him
annual salary increases consistent with performance review
ratings as compared with other employees of the same or similar
rank;
(iii) the Bank or the Corporation has failed to continue in
effect any benefit, retirement or compensation plan, thrift and
savings plan, stock bonus, stock option/stock appreciation rights
plan, life insurance plan, health plan, or disability plan in
which Officer is participating at the time of a Change in Control
of the corporation (or plans providing substantially similar
benefits), or the Bank or the Corporation has taken any action
which would adversely affect his participation in or materially
reduce his benefits under any of such plans or deprive him of any
material fringe benefit or perquisite enjoyed by him at the time
of the Change in Control.
(e) Notice of Termination. Any termination of officer's employment
shall be communicated by a written Notice of Termination to the other party to
this Agreement specifying the "Termination Date". For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement (if any) relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of officer's employment under the provision so
indicated. The Board resolution adopted pursuant to paragraph (c) above may
constitute Notice of Termination under such provision.
(f) Effect of Agreement on Other Rights. This Agreement shall not
diminish or increase other rights Officer (or his estate, survivors or heirs)
may have under any other contract, employee benefit plan or policy of the Bank
except as expressly provided in this Agreement.
5. Compensation and Benefits Following Termination. If the Bank should
terminate the employment of the Officer other than for Disability pursuant to
subparagraph 4(b) hereof or for Cause pursuant to subparagraph 4(c) hereof, or
if Officer should terminate his employment for Good Reason pursuant to
subparagraph 4 (d) hereof, during the two-year period following the occurrence
of an event constituting a Change in Control of the Corporation or the Bank,
then the Bank shall provide Officer the following severance pay and benefits:
(a) Compensation through Termination Date. The Bank shall pay Officer
his total compensation (salary plus consulting fees) through the Termination
Date at the monthly rate in effect at the time that Notice of Termination is
given, together with an amount equal to the product of (x) a fraction, the
numerator of which is the number of days in the year of termination preceding
the Termination Date and the denominator of which is 360, and (y) the greater of
the following amounts:
(i) one-third (1/3) of the aggregate bonuses paid or payable
to the Officer during the most recent three full fiscal years; or
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(ii) the total of all bonus payments to which the Officer
would be entitled with respect to the year of termination,
projecting, on an appropriate basis, the Corporation's actual
performance from the beginning of the applicable performance
period or periods through the end of the month preceding the
Termination Date, to the end of the applicable performance period
or periods, and assuming, where applicable, that the Officer is
entitled to the maximum award potentially available under the
applicable bonus plans or other arrangements.
(b) Severance Pay. The Bank shall pay the Officer within thirty (30)
days following his Termination Date, a lump sum payment in an amount equal to
twice the sum of (i) the Officer's total annual compensation (salary plus
consulting fees) at the rate in effect at the time that Notice of Termination is
given, plus (ii) the greater of the following amounts:
(x) one-third (1/3) of the aggregate bonuses paid or payable
to the Officer during the most recent three full fiscal years;
(y) the total of all bonus payments to which the Officer
would be entitled with respect to the year of termination,
projecting, on an appropriate basis, the Corporation's actual
performance from the beginning of the applicable performance
period or periods through the end of the month preceding the
Termination Date, to the end of the applicable performance period
or periods, and assuming, where applicable, that the officer is
entitled to the maximum award potentially available under the
applicable bonus plans or other arrangements; or
(z) the total of all minimum awards potentially payable,
with respect to the year of termination, under all applicable
bonus plans or other arrangements.
(c) Insurance Benefits. The Corporation or the Bank, as the case may
be, shall maintain in full force and effect for two (2) years after the
Termination Date all employee life, health, accident, disability, dental,
medical and other employee welfare benefit plans, programs or arrangements
(other than benefits under any supplemental retirement plan of the Corporation
or the Bank in which Officer was participating immediately prior to Notice of
Termination being given) provided that his continued participation is possible
under the terms and provisions of such plan, programs and arrangements. In the
event that officer's participation in any such plan, program or arrangement is
barred, the Bank at its option shall arrange to either provide Officer with
benefits substantially similar to those which he would have been entitled to
receive under such plan, program or arrangement if he had remained a participant
for such two (2) year period or compensation Officer in an amount equal to the
cost of the benefit for the period during which his participation is barred.
(d) Legal Costs. Other than provided in Section 6, the prevailing
party shall be reimbursed by the non-prevailing party for all legal fees and
expenses incurred as a result of any litigation arising out of this Agreement.
(e) Calculation of Benefits Under Certain Plans. For the purposes of
calculating the amount of severance payable to the Officer following a Notice of
Termination under paragraph (b) of Section 5 of this Agreement, if at the time a
Notice of Termination is given the Officer has not been employed by the Bank for
a period of time sufficient for the Officer to have been eligible for a cash
bonus under an Annual Incentive Plan as in effect for the applicable number of
years prior to the Notice of Termination, then the officer shall be deemed to
have earned the maximum bonus award potentially available to an officer of the
same grade under the Annual Incentive Plan (computed based upon the officer's
current annual base salary) for the applicable year or years prior to the Notice
of Termination for which the Officer was not an employee and therefore not
eligible for a cash bonus under an Annual Incentive Plan.
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6. Certain Regulatory Considerations.
(a) Any payments made to the Officer pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with 12
U.S.C.ss.1828(k) and any regulations promulgated thereunder.
(b) If the Officer is suspended and/or temporarily prohibited from
participating in he conduct of BankUnited, FSB'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 company's obligation under this
Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in such notice are dismissed, the
Company shall pay to the Officer all of the compensation withheld while the
obligations under this Agreement were suspended and shall reinstate its
obligations hereunder.
(c) If the Officer is removed and/or permanently prohibited from
participating in the conduct of BankUnited, FSB's affairs by an order issued
under Sections 8(e)(4) or (g)(1) of the Act (12 U.S.C. 1818 (e)(4) or (g)(1)),
all obligations of the Company shall terminate as of the effective date of the
order, but vested rights of the parties hereto shall not be affected.
(d) If BankUnited, FSB is in default (as defined in Section 3(x)(1)
of the Act), all obligations under this Agreement shall terminate as of the date
of default, but this subsection shall not affect any vested rights of the
parties hereto shall not be affected.
(e) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary for
the continued operation of BankUnited, FSB, (i) by the Director of the Office of
Thrift Supervision or her designee (the "Director"), at the time the Federal
Deposit Insurance Corporation ("FDIC") or the Resolution Trust Corporation (the
"RTC") enters into an agreement to provide assistance to or on behalf of
BankUnited, FSB under the authority contained in Section 13(c) of the Act; or
(ii) by the Director, at the time the Director approves a supervisory merger to
resolve problems related to operation of BankUnited, FSB or when BankUnited, FSB
is determined by the Director to be in an unsafe or unsound condition. Any
rights of the parties hereto that have already vested, however, shall not be
affected by such action.
7. Arbitration.
(i) All disputes under this Agreement shall be settled by arbitration
in Miami, Florida, before a single arbitrator pursuant to the rules of the
American Arbitration Association. Arbitration may be commenced at any time by
any party hereto giving written notice to each other party to a dispute that
such dispute has been referred to arbitration under this Section. The arbitrator
shall be selected by the joint agreement of Bank and Officer, but if they do not
so agree within 20 days after the date of the notice referred to above, the
selection shall be made pursuant to the rules from the panels of arbitrators
maintained by such Association. 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 the decision of
the arbitrator in accordance herewith shall be final and binding and there shall
be no right of appeal therefrom. Each party shall pay its own expenses of
arbitration and the expenses of the arbitrator shall be equally shared;
provided, however, that if in the opinion of the arbitrator any claim for
indemnification or any defense or objection thereto was unreasonable, the
arbitrator may assess, as part of his award, all or any part of the arbitration
expenses of the other party (including reasonable attorneys' fees) and of the
arbitrator against the party raising such unreasonable claim, defense or
objection.
(ii) To the extent that arbitration may not be legally permitted
hereunder and the parties to any dispute hereunder may not at the time of such
dispute mutually agree to submit such dispute to arbitration any party may
commence a civil action in a court of appropriate jurisdiction to solve disputes
hereunder. Nothing contained in this Section 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 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:
XXXXXXXX X. XXXX
0000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
If to the Bank:
XXXXXXX X. XXXX, Executive Vice President
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
9. Successors; Nonassignability.
(a) Any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Bank, is bound by this Agreement in the same manner and to the
same extent as the Bank and the Corporation if no such succession had taken
place. Failure of any such successor of the Bank and the Corporation to
acknowledge this Agreement upon written request by Officer shall be a breach of
this Agreement and shall entitle Officer, if he thereafter terminates his
employment with the Bank, to compensation from the Bank in the same amount and
on the same terms as he would be entitled to hereunder if he had given Notice of
Termination due to a reduction of his responsibilities pursuant to paragraph (d)
of Section 4 as of the day immediately before such succession became effective
and had specified the day on which he terminates his employment as his
Termination Date. As used in this Agreement, the Bank shall include any
successor to all or substantially all of its business or assets or which
otherwise becomes bound by all the terms and provisions of this Agreement,
whether by the terms hereof, by operation of law or otherwise. Except as
provided in this paragraph, this Agreement shall not be assignable by the Bank.
(b) All rights of Officer under this Agreement shall inure to the
benefit of and be enforceable by his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees if the Bank should terminate his employment other than for Disability
pursuant to subparagraph 4(b) hereof or for Cause pursuant to subparagraph 4(c)
hereof or if officer should terminate his employment for Good Reason pursuant to
subparagraph 4(d) hereof. If officer should die while any amounts 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. Whole 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. Separability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
12. Modifications. This Agreement may be modified or amended by the Bank
prior to a change of control. After a change of 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 as
may be specifically designated by the Board of Directors of the Bank. 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 at any prior or subsequent time.
13. Withholding Taxes. The Bank may withhold from any benefits payable
under this Agreement 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.
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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 of the
Corporation, the payments under Section 5 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 Date of the Change in Control (or another
accounting firm designated by them) determine that the payments under Section 5
may constitute "excess parachute payments," the amounts payable pursuant to
Section 5 shall be reduced to the maximum amount that may be paid without
constituting the payments "excess parachute payments." Such determination
pursuant to this Section shall take into account (i) whether the payments under
this Agreement are "parachute payments" within the meaning of Section 280G and,
if so, (ii) the amount of payments under Section 5 that 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
to pay the Officer's compensation or benefits in excess of those provided in
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BANKUNITED, FSB
BY: /s/ Xxxxx Xxxxxx /s/ Xxxxxxxx X. Xxxx
------------------------------- ----------------------------------
Name: Xxxxx Xxxxxx Name: XXXXXXXX X. XXXX
Title: Senior Vice President
BANKUNITED FINANCIAL CORPORATION
BY: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
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