SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party Other Than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, For Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
BANKUNITED FINANCIAL CORPORATION
(Name of Registrant as Specified in Its Articles of Incorporation)
Marsha D. Bilzin, Esq.
Stuzin and Camner, P.A.
550 Biltmore Way
Suite 700
CORAL GABLES, FLORIDA 33134
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:_______
2) Aggregate number of securities to which transaction applies:-_________
3) Per unit price or other underlying value of transaction computer
pursuant to Exchange Act Rule 0-11:___________________________________
4) Proposed maximum aggregate value of transaction:______________________
5) Total fee paid:_______________________________________________________
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:________________________________________________
2) Form, Schedule or Registration Statement No.:__________________________
3) Filing Party:__________________________________________________________
4) Date Filed:____________________________________________________________
<PAGE>
BANKUNITED FINANCIAL CORPORATION
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
FOR MONDAY, FEBRUARY 18, 1997
NOTICE IS HEREBY GIVEN that the 1997 Annual Meeting of Stockholders
(the "Annual Meeting") of BankUnited Financial Corporation (the "Company") will
be held at the Omni Colonnade Hotel, 180 Aragon Avenue, Coral Gables, Florida,
on Tuesday, February 18, 1997 at 11:00 a.m., for the following purposes:
(1) To elect five Class I directors to serve until 2000, one
Class II director to serve until 1998 and three Class III directors to
serve until 1999;
(2) To consider and vote upon approval of the Company's 1996
Incentive Compensation and Stock Award Plan;
(3) To approve amendments to the Company's Articles of
Incorporation pertaining to the Company's 8% Noncumulative
Convertible Preferred Stock, Series 1993, (the "8% Preferred Stock"),
and the Company's 9% Noncumulative Perpetual Preferred Stock, (the "9%
Preferred Stock") which prohibit the Company from purchasing or
otherwise acquiring shares of the 8% Preferred Stock or shares of the
9% Preferred Stock; and
(4) To transact such other business as may properly come
before the Annual Meeting and any postponements or adjournments
thereof.
Pursuant to the Bylaws, the Board of Directors has fixed the close of
business on December 27, 1996 as the record date for the determination of the
stockholders entitled to notice of and to vote at the Annual Meeting.
By Order of the Board of Directors
MARC D. JACOBSON
SECRETARY
Coral Gables, Florida
January [17], 1997
IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. THEREFORE, WHETHER
OR NOT YOU PLAN TO BE PRESENT IN PERSON AT THE ANNUAL MEETING, PLEASE SIGN, DATE
AND COMPLETE THE ENCLOSED PROXY CARD AND RETURN IT IN THE ENCLOSED ENVELOPE,
WHICH DOES NOT REQUIRE POSTAGE IF MAILED IN THE UNITED STATES.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
255 ALHAMBRA CIRCLE
CORAL GABLES, FLORIDA 33134
TELEPHONE: (305) 569-2000
PROXY STATEMENT
FOR THE FEBRUARY 18, 1997 ANNUAL MEETING OF STOCKHOLDERS
INTRODUCTION
This Proxy Statement is furnished to stockholders of BankUnited
Financial Corporation (the "Company") in connection with the solicitation by the
Company's Board of Directors ("Board" or "Board of Directors") of proxies for
the Annual Meeting of Stockholders (the "Annual Meeting") to be held on February
18, 1997, and at any postponements or adjournments thereof. At the Annual
Meeting, the stockholders of the Company will consider the matters described
herein. The approximate date of mailing this Proxy Statement and the
accompanying proxy card to the Company's stockholders is January [17], 1997.
VOTING AND SOLICITATION OF PROXIES
USE OF PROXIES AT THE ANNUAL MEETING
Proxies in the accompanying form, if properly executed, received by the
Company prior to the Annual Meeting and not revoked prior to the use thereof,
will be voted at the Annual Meeting as instructed thereon. Executed proxies with
no instructions indicated thereon will be voted (i) FOR the election of nine
directors, as set forth below under "Election of Directors," (ii) FOR the
approval of the 1996 Incentive Compensation and Stock Award Plan (the "1996
Plan"), and (iii) FOR the Amendments to Appendix F and Appendix G to Article VI
of the Company's Articles of Incorporation, the Statements of Designation
pertaining to, respectively, the Company's 8% Noncumulative Convertible
Preferred Stock, Series 1993, $.01 par value per share (the "8% Preferred
Stock"), and the Company's 9% Noncumulative Perpetual Preferred Stock, $.01 par
value per share (the "9% Preferred Stock"), to delete Section 2(g) of each of
such Appendix, which Section 2(g) prohibits the Company from purchasing or
otherwise acquiring shares of the 8% Preferred Stock or shares of the 9%
Preferred Stock. The Board of Directors knows of no matters that are to be
presented for consideration at the Annual Meeting other than those described in
this Proxy Statement, but if other matters are properly presented, it is the
intention of the persons designated as proxies on the enclosed proxy card to
vote as proxies with respect to such matters in accordance with their judgment.
REVOCATION OF PROXIES
A proxy may be revoked at any time prior to the use of such proxy in
voting. Any stockholder may revoke a proxy delivered pursuant to this
solicitation by delivery of written notice to the Secretary of the Company, by
submission of a later-dated proxy card, or by voting in person at the Annual
Meeting.
<PAGE>
RECORD DATE; STOCKHOLDERS ENTITLED TO VOTE AT ANNUAL MEETING
Holders of the Series I Class A Common Stock (the "Class A Common"),
Class B Common Stock (the "Class B Common"), and Noncumulative Convertible
Preferred Stock, Series B (the "Series B Preferred Stock"), of record at the
close of business on December 27, 1996 (the "Record Date"), will be entitled to
notice of and to vote together on each proposal submitted to the stockholders at
the Annual Meeting and any postponements or adjournments thereof. Each share of
Class A Common is entitled to one-tenth of one vote, each share of Class B
Common is entitled to one vote and each share of Series B Preferred is entitled
to two and one-half votes. Holders of shares of 8% Preferred Stock and 9%
Preferred Stock are entitled to vote together as class on Proposal Three.
As of the Record Date, 7,656,783 shares of Class A Common, 251,515
shares of Class B Common, and 183,813 shares of Series B Preferred Stock were
outstanding. As of the Record Date, there were also outstanding 363,636 shares
of Noncumulative Convertible Preferred Stock, Series C, 222,223 shares of
Noncumulative Convertible Preferred Stock, Series C-II, 744,870 shares of
Noncumulative Convertible Preferred Stock, Series 1993 1,150,000 shares of 9%
Noncumulative Perpetual Preferred Stock and 920,000 shares of 8% Noncumulative
Convertible Preferred Stock, Series 1996.
QUORUM; ADJOURNMENT; VOTES REQUIRED FOR APPROVAL
Holders of the Class A Common, Class B Common, and the Series B
Preferred Stock are entitled to vote together on each of the proposals being
submitted to the stockholders at the Annual Meeting for a vote, with each share
of Class A Common entitled to one-tenth vote; each share of Class B Common
entitled to one vote; and each share of Series B Preferred Stock entitled to two
and one-half votes. Holders of the 8% Preferred Stock and the 9% Preferred Stock
are entitled to vote together as a class on Proposal Three. The presence, in
person or by proxy of shares as of the Record Date representing at least a
majority of the votes entitled to be cast as to a proposal is necessary to
constitute a quorum at the Annual Meeting for action on such proposal. Holders
of shares of Class A Common, Class B Common, and Series B Preferred Stock,
representing a majority of the votes entitled to be cast constitute a quorum at
the Annual Meeting for action on all the proposals. Holders of shares of 8%
Preferred Stock and 9% Preferred Stock, present in person or by proxy,
representing a majority of the votes entitled to be cast by them as a class on
Proposal Three, constitute a quorum for such class vote.
Abstentions and broker non-votes are included in the calculation of the
number of votes represented at the Annual Meeting for purposes of determining
whether a quorum has been achieved. In the event there are not sufficient votes
for a quorum, the Annual Meeting may be adjourned from time to time until a
quorum is obtained.
An automated system administered by the Company's transfer agent will
tabulate the votes for the Annual Meeting. Under applicable Florida law, the
directors nominated for election to the Board, as described under the caption
"Election of Directors," must each be elected by the affirmative vote of a
plurality of the votes entitled to be cast at the Annual Meeting. Votes withheld
for one or more nominees for director or broker non-votes will not be considered
affirmative votes for this purpose. Approval of Proposal Two requires the
affirmative vote of holders of a majority of the votes entitled to be cast, as
discussed above. Adoption of the proposal to amend the Articles of Incorporation
pertaining to the amendment of the Statements of Designation for the Company's
8% Preferred Stock and 9% Preferred Stock requires the affirmative vote of
holders of a majority of the total votes cast by the holders of the Class A
Common, the Class B Common and the Series B Preferred Stock voting together as a
class and a majority of the total votes cast by the holders of the 8% Preferred
Stock and the 9% Preferred Stock voting together as a Class, in person or by
proxy and entitled to vote on Proposal Three.
SOLICITATION
The Company will bear the cost of solicitation of proxies. In addition
to the use of the U.S. mail, directors, officers and regular employees of the
Company may solicit proxies personally or by telephone, facsimile or telegram.
Such persons will receive no additional compensation. The Company will reimburse
custodians, brokerage houses, nominees and other fiduciaries for their
reasonable expenses in sending the proxy materials to their principals.
A copy of the Company's Annual Report, including consolidated financial
statements for the fiscal year ended September 30, 1996, has been mailed to
stockholders with this Proxy Statement.
2
<PAGE>
ELECTION OF DIRECTORS
The Board of Directors consists of 16 members divided into three
classes, whose three-year terms of office expire in annual succession. At this
Annual Meeting, five directors have been nominated to serve in Class I, with a
term ending in 2000, one director has been nominated to serve in Class II, with
a term ending in 1998, and three directors have been nominated to serve in Class
III, with terms ending in 1999. It is intended that the shares shown on the
enclosed proxy card, if the proxy card is returned properly executed, will be
voted for the election of all of the nominees proposed by the Board of Directors
whose names appear below, unless the proxy card is marked to indicate that such
authorization is expressly withheld. Each of the nominees for director has
consented to being named as a nominee in this Proxy Statement and to serve if
elected. If any nominee, however, becomes unavailable for any reason or if a
vacancy occurs before the election (which event is not now anticipated), at the
discretion of the proxies the shares as to which a proxy is granted will be
voted for such substitute nominee or nominees as may be nominated by the Board.
Described below is information with respect to each nominee for
director. Two of the nominees are currently directors of the Company who have
been elected by the stockholders at previous annual meetings. Three of the
nominees were appointed by the Board during 1996 and are serving their first
term as Board members. Four of the nominees were previously directors of
Suncoast Savings and Loan Association, FSA ("Suncoast") and were appointed to
the Board pursuant to the Agreement and Plan of Merger dated July 15, 1996, as
amended, (the "Merger Agreement") between the Company and Suncoast. The Company
completed the purchase of Suncoast on November 15, 1996.
The table describes the periods each director has served as a director
of the Company or of BankUnited, FSB ("BankUnited"). The table also describes
each nominee's or director's positions and offices, if any, with the Company and
BankUnited, and his or her principal occupation or employment for the past five
years.
NOMINEES
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
- ------------------------------------------------------------------------------- --------
<S> <C>
The persons nominated as Class I Directors are:
MARC D. JACOBSON: Age 54 1984
Director and Secretary of the Company (1993 to present); Director (1984 to
present) and Secretary (1985 to present) of BankUnited; Vice President of
Head-Beckham Insurance Agency, Inc. (1990 to present).
ALBERT J. FINCH: Age 59 1996
Director and Vice Chairman of the Company and BankUnited (November 1996 to
present); President and sole owner of Finch Financial, Inc., a financial
consulting firm (November 1996 to present); Director, Chairman of the Board
and Chief Executive Officer of Suncoast (1985 to November 1996); Chief
Operating Officer and President of Suncoast (1992 to November 1996).
</TABLE>
(TABLE CONTINUED ON NEXT PAGE.)
3
<PAGE>
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
- ------------------------------------------------------------------------------- --------
<S> <C>
NEIL MESSINGER, M.D.: Age 58 1996
Director of the Company (1996 to present) and BankUnited (1996 to present);
radiologist; President (1986 to present), Radiological Associates, P.A.;
Chairman (1986 to present) of Imaging Services of Baptist Hospital.
MARC LIPSITZ: Age 55 1996
Director of the Company (1996 to present); Managing Director (1996 to
present) of Stuzin and Camner, P.A.; General Counsel of Jefferson National
Bank (1993-1996); Partner, Stroock Stroock & Lavan, attorneys at law
(1991-1993).
ANNE W. SOLLOWAY (1): Age 80 1985
Director of the Company (1993 to present) and BankUnited (1985 to present);
Private investor in Miami, Florida.
The person nominated as a Class II director is:
ELIA J. GIUSTI: Age 62 1996
Director of the Company and BankUnited (November 1996 to present); Director
of Suncoast (1990 to 1996); President and principal owner of Lee Giusti
Realty, Inc. a real estate and mortgage brokerage firm (1982 to present).
The persons nominated as Class III directors are:
NORMAN E. MAINS: Age 53 1996
Director of the Company and BankUnited (November 1996 to present); Director
of Suncoast (1985 to 1996); Chief Economist and Director of Research for
the Chicago Mercantile Exchange (1994 to present); President and Chief
Operating Officer of Rodman & Renshaw Capital Group, Inc., a securities
broker/dealer firm (1991 to 1994).
IRVING P. COHEN: Age 55 1996
Director of the Company and BankUnited (November 1996 to present); Director
of Suncoast (1988 to 1996); Partner, Thompson Hine & Flory, attorneys at
law (1995 to present); Partner, Semmes Bowen & Semmes, attorneys at law
(1990 to 1995).
BRUCE FRIESNER: Age 53 1996
Director of the Company (1996 to present) and BankUnited (1996 to present);
Director of Loan America Financial Corporation, a national mortgage banking
company, (1990-1994); Partner of F&G Associates, a commercial real estate
development company (1972 to present).
</TABLE>
(TABLE CONTINUED ON NEXT PAGE.)
4
<PAGE>
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR TERM AS DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
- ------------------------------------------------------------------------------- -------- ----------------
<S> <C> <C>
INFORMATION ABOUT THE CONTINUING MEMBERS OF THE BOARD OF DIRECTORS
The directors who are not currently standing for election are:
CURRENT CLASS II DIRECTORS:
LAWRENCE H. BLUM: Age 53 1984 1998
Director and Vice Chairman of the Board of the Company (1993 to present)
and BankUnited (1984 to present); Managing Director (1992 to present) and
partner (1974 to present) of Rachlin, Cohen & Holtz, certified public
accountants.
ALFRED R. CAMNER (1): Age 52 1984 1998
Director, Chairman of the Board, Chief Executive Officer and President of
the Company (1993 to present); Director, Chairman of the Board and Chief
Executive Officer (1984 to present) and President (1984 to 1993, November
1994 to present) of BankUnited; Senior Managing Director of Stuzin and
Camner, Professional Association, attorneys-at-law (1973 to present);
Director and member of the Executive Committee of the Board of Directors of
Loan America Financial Corporation, a national mortgage banking company
(1985 to 1994); Director of CSW Associates, Inc., an asset management firm
(1990 to 1995).
PATRICIA L. FROST: Age 58 1990 1998
Director of the Company (1993 to present) and BankUnited (1990 to present);
Private investor in Miami, Florida (1993 to present); Principal, West
Laboratory School, Coral Gables, Florida (1970 to 1993).
JAMES A. DOUGHERTY: Age 46 1995 1998
Director (December 1995 to present) and Executive Vice President (1994 to
present) of the Company; Director, Executive Vice President and Chief
Operating Officer of BankUnited (1994 to present); Executive Vice President
of Retail Banking, Intercontinental Bank (1989 to 1994).
CURRENT CLASS III DIRECTORS:
ALLEN M. BERNKRANT: Age 65 1985 1999
Director of the Company (1993 to present) and BankUnited (1985 to present);
Private investor in Miami, Florida (1990 to present).
</TABLE>
(TABLE CONTINUED ON NEXT PAGE.)
5
<PAGE>
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR TERM AS DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
- ------------------------------------------------------------------------------- -------- ----------------
<S> <C> <C>
EARLINE G. FORD: Age 53 1984 1999
Director, Executive Vice President and Treasurer of the Company (1993 to
present); Director (1984 to present), Executive Vice President (1990 to
present), Senior Vice President--Administration (1988 to 1990), Treasurer
(1984 to present) and Vice President--Administration (1984 to 1988) of
BankUnited; Legal Administrator of Stuzin and Camner, Professional
Association, attorneys-at-law (1973 to 1996); Vice Chairman of CSW
Associates, Inc., an asset management firm (1990 to 1995).
CHRISTINA CUERVO MIGOYA: Age 31 1995 1999
Director of the Company and BankUnited (December 1995 to present); Executive
Vice President, the Beacon Council (1996 to present); Assistant City
Manager and Chief of Staff of the City of Miami (1992 to 1996); Assistant
Vice President of United National Bank (1992); Assistant Vice President,
First Union National Bank (formerly, Southeast Bank) (1986 to 1992).
</TABLE>
- -----------------
(1) Anne W. Solloway is Alfred R. Camner's mother.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF ALL OF THE
NOMINEES FOR ELECTION AS DIRECTORS.
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
Alfred R. Camner, Earline G. Ford and James Dougherty have been
appointed to act as the Executive Committee of the Company's Board and as the
Executive Committee of BankUnited's Board, during the 1996 fiscal year. Each
Executive Committee is authorized to exercise the powers of the Board of
Directors between regular meetings of the Board, including the power to
formulate plans, policies and programs for the management, operation and
development of the Company and BankUnited. Beginning in fiscal 1997 each
Executive Committee will also select nominees for election as directors. During
the 1996 fiscal year, the Company's Executive Committee met as required and
BankUnited's Executive Committee met approximately twice a week.
Three non-management members of the Board, Marc D. Jacobson, Allen M.
Bernkrant and Neil Messinger, have been appointed to serve as members of the
Compensation Committee of the Company and BankUnited. Dr. Messinger was
appointed to serve as a member of the Compensation Committee on November 14,
1996 and therefore was not a committee member during fiscal 1996. The
Compensation Committee is responsible for setting the salaries and cash and
stock bonuses for the four most senior officers (Alfred R. Camner, Chairman of
the Board, Chief Executive Officer and President; James A. Dougherty, Executive
Vice President and Chief Operating Officer; Earline G. Ford, Executive Vice
President and Treasurer; and Lawrence H. Blum, Vice Chairman of the Board) and
met 4 times during fiscal year 1996. Mr. Bernkrant and Mr. Jacobson also
currently constitute the Board's Audit Committee. The Audit Committee reviews
the financial condition, operations and records of the Company and BankUnited,
reviews with management and the independent auditors the systems of internal
control, and monitors the Company's and BankUnited's adherence in accounting and
financial
6
<PAGE>
reporting to generally accepted accounting principles. The Audit Committee had
5 formal meetings in fiscal year 1996 and conferred on a regular basis to
review internal audit reports.
The Company's Board of Directors held 4 meetings and BankUnited's Board
of Directors held 12 meetings during fiscal year 1996. Each current director
attended at least 75% of the aggregate of all such meetings, during the period
in which each individual was a member of the Boards, and all meetings of the
committees on which he or she served.
COMPENSATION OF DIRECTORS
For service on the Company's Board of Directors during the 1996 fiscal
year, the directors of the Company each received a fee per meeting that
consisted of shares of Class A Common with a current market value of $100 and
options to acquire shares of Class A Common with a current market value of $250.
In addition, for service on BankUnited's Board of Directors, the directors
received a fee per meeting consisting of $400 in cash, shares of Class A Common
with a current market value of $400 and options to acquire shares of Class A
Common with a current market value of $500. However, if any director of
BankUnited missed more than two meetings of the Board of Directors, he or she
received directors' fees only for those meetings he or she actually attended
thereafter.
Non-employee directors who are members of a Board committee or of
BankUnited's Community Reinvestment Act Committee received an additional fee per
meeting of the applicable committee (paid in cash, stock options and shares of
stock as indicated above) for service on those committees. Committee members who
are also employees did not receive additional compensation for their service on
such committees.
Beginning on November 14, 1996, the Compensation Committee and the
Board voted to change that portion of the fee which is paid in the form of an
option award. Option awards will be a grant of an option to acquire 125 shares
of Class A Common for each Board and committee meeting of BankUnited and an
option to acquire 30 shares of Class A Common for each Board and committee
meeting of the Company. The portion of director and committee fees, paid in cash
and stock, will remain the same.
Pursuant to the Merger Agreement between the Company and Suncoast, the
Company entered into a consulting agreement with Albert J. Finch, the former
Chief Executive Officer and President of Suncoast. The terms of such consulting
agreement include payment of a monthly consultant fee at the rate of $100,000
per year for a three-year period for consulting services of up to 600 hours per
year. In addition, the Company will provide several benefits which Mr. Finch
received as an officer of Suncoast during the term of his consulting agreement.
The Company has the right to terminate the consulting agreement only for cause.
7
<PAGE>
EXECUTIVE COMPENSATION
ANNUAL COMPENSATION
The following table sets forth information regarding the total
compensation awarded to, earned by or paid to the Chief Executive Officer and
four additional officers of the Company and BankUnited whose total annual salary
and bonus exceeded $100,000 (the "named executive officers"). There were no
other executive officers at the fiscal year ended September 30, 1996 whose total
annual salary and bonus for the fiscal year exceeded $100,000 for services
rendered to the Company and BankUnited.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG TERM
COMPENSATION
------------
ANNUAL COMPENSATION AWARDS
-------------------------------------- ------------
SECURITIES
NAME AND PRINCIPAL OTHER ANNUAL UNDERLYING ALL OTHER
POSITION YEAR SALARY($) BONUS($) COMPENSATION($) OPTIONS/SARS(#)(A) COMPENSATION($)
- ------------------------- ---- --------- -------- ---------------- ------------------ ---------------
<S> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 1996 $175,092(B) $54,039(D) (J) 65,986 $8,361(K)
Chairman of the Board,
Chief Executive Officer 1995 $153,750(C) $48,749(D) (J) 96,177 $8,942(K)
and President of the
Company and BankUnited 1994 $122,500 $91,040(D) (J) 43,369 $8,942(K)
JAMES A. DOUGHERTY
Executive Vice President 1996 $126,067(E) $12,200(E) (J) 13,451 --
of the Company;
Executive Vice President 1995 $118,794 $ 6,050 (J) 14,907 --
and Chief Operating
Officer of BankUnited 1994 -- -- -- -- --
EARLINE G. FORD
Executive Vice President 1996 $ 94,047(F) $23,350(G) (J) 13,486 --
and Treasurer of
BankUnited 1995 -- -- -- -- --
1994 -- -- -- -- --
CHARLES A. ARNETT
Executive Vice President 1996 $112,250 $ 3,300(H) (J) -- --
of BankUnited
1995 48,333 -- -- -- --
1994 -- -- -- -- --
SAMUEL A. MILNE
Executive Vice President 1996 $105,000 $ 5,000(I) (J) 12,500 --
and Chief Financial
Officer of the Company 1995 41,667 -- -- -- --
and BankUnited
1994 -- -- -- -- --
</TABLE>
- -----------------
(FOOTNOTES ON NEXT PAGE.)
8
<PAGE>
#--Number of shares granted.
$--Dollar amounts.
(A) All information provided relates to option grants. The Company does
not grant stock appreciation rights ("SARs"). All amounts are adjusted
for stock splits. Includes options that were granted as a partial
payment of the named executive officers' directors' fees for service on
the Boards of Directors of the Company and BankUnited. See "Election of
Directors--Compensation of Directors."
(B) Includes 6,000 shares of Class B Common with a fair market value of
$43,425 on the date of grant that were granted in lieu of cash salary
for a portion of the officer's annual compensation.
(C) Includes 5,000 shares of Class B Common with a fair market value of
$28,750 on the date of grant that were granted in lieu of cash salary
for a portion of the officer's annual compensation.
(D) Reflects a stock bonus of 7,466 shares of Class B Common with a fair
market value on the date of grant of approximately $54,035 paid in the
1996 fiscal year for services during the 1995 fiscal year; a stock
bonus of 8,477 shares of Class B Common with a fair market value on the
date of grant of approximately $48,749 paid in the 1995 fiscal year for
services during the 1994 fiscal year; a cash bonus of $50,677 and a
stock bonus of 5,383 shares of Class B Common with a fair market value
on the date of grant of approximately $40,372 paid in the 1994 fiscal
year for services during the 1993 fiscal year.
(E) Reflects a stock bonus of 1,685 shares of Class B Common with a fair
market value of $12,195 on the date of grant paid in the 1996 fiscal
year for services during the 1995 fiscal year.
(F) Includes 3,000 shares of Class B Common with a fair market value of
$21,713 on the date of grant that were granted in lieu of cash salary
for a portion of the officer's annual compensation.
(G) Reflects a stock bonus of 3,225 shares of Class B Common with a fair
market value on the date of grant of approximately $23,341 paid in the
1996 fiscal year for services during the 1995 fiscal year.
(H) Reflects a cash bonus of $1,652 and a stock bonus of 227 shares of
Class A Common with a fair market value on the date of grant of
approximately $1,643 paid in the 1996 fiscal year for services during
the 1995 fiscal year.
(I) Reflects a cash bonus of $2,503 and a stock bonus of 345 shares of
Class A Common with a fair market value on the date of grant of
approximately $2,497 paid in the 1996 fiscal year for services during
the 1995 fiscal year.
(J) The aggregate amount of such compensation for each fiscal year is less
than 10% of the total of the named executive officer's annual salary
and bonus for such fiscal year.
(K) Reflects premiums paid on a life insurance policy for the benefit of
Mr. Camner.
9
<PAGE>
COMPENSATION PURSUANT TO PLANS
1996 STOCK OPTION GRANTS. The following table provides details
regarding stock options granted to the named executive officers during the 1996
fiscal year. In addition, in accordance with rules and regulations of the
Securities and Exchange Commission, the table describes the hypothetical gains
that would exist for the respective options based on assumed rates of annual
compound stock appreciation of 5% and 10% from the date of grant to the end of
the option term. These hypothetical gains are based on assumed rates of
appreciation and, therefore, the actual gains, if any, on stock option exercises
are dependent on the future performance of the Class A Common, overall stock
market conditions, and the named executive officer's continued employment with
the Company and BankUnited. As a result, the amounts reflected in this table may
not necessarily be achieved.
<TABLE>
<CAPTION>
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
--------------------------------------------------------- ----------------------------
NO. OF SECURITIES
UNDERLYING
OPTIONS/SARS PERCENT OF TOTAL
GRANTED(#)(B) OPTIONS/SARS EXERCISE
------------------- GRANTED OR BASE
CLASS A CLASS B TO EMPLOYEES PRICE EXPIRATION
NAME COMMON COMMON IN FISCAL YEAR(C) ($/SHARE) DATE 5%($) 10%($)
- ------------------ ------- ------- ----------------- --------- ---------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 182(D) * $8.2750 11/26/05 $ 947 $ 2,400
276(D) * $7.5875 2/22/06 $ 1,317 $ 3,338
20,000(F) 15.05% $8.1375 4/1/06 $102,353(E) $259,382(E)
261(D) * $7.8750 5/24/06 $205,884 $521,751
45,000(F) 33.85% $7.2750 7/18/06 $ 1,099 $ 2,786
267(D) * $7.6750 8/28/06 $ 1,289 $ 3,266
JAMES A. DOUGHERTY 181 * $8.2750 11/26/05 $ 942 $ 2,387
276(D) * $7.5875 2/22/06 $ 1,317 $ 3,338
5,000(F) 3.76% $8.1375 4/1/06 $ 25,588 $ 64,845
228(D) * $7.8750 5/24/06 $ 1,129 $ 2,862
7,500(F) 5.64% $7.2750 7/18/06 $ 34,314 $ 86,959
266(D) * $7.6750 8/28/06 $ 1,284 $ 3,254
EARLINE G. FORD 182(D) * $8.2750 11/26/05 $ 947 $ 2,400
276(D) * $7.5875 2/22/06 $ 1,317 $ 3,338
5,000(F) 3.76% $8.1375 4/1/06 $ 25,588 $ 64,845
261(D) * $7.8750 5/24/06 $ 1,293 $ 3,276
7,500(F) 5.64% $7.2750 7/18/06 $ 34,314 $ 86,959
267(D) * $7.6750 8/28/06 $ 1,289 $ 3,266
SAMUEL A. MILNE 5,000(F) 3.76% $8.1375 4/1/06 $ 25,588 $ 64,845
7,500(F) 5.64% $7.2750 7/18/06 $ 34,314 $ 86,959
</TABLE>
- ----------------------
#--Number of shares underlying options granted.
$--Dollar amounts.
*--Less than 1%.
(A) All information provided relates to option grants. The Company does not
grant SARs.
(FOOTNOTES CONTINUED ON NEXT PAGE.)
10
<PAGE>
(B) All options were granted under the Company's 1992 Non-Statutory Stock
Option Plan (the "Non-Statutory Plan") for terms of 10 years and are
exercisable immediately, except as indicated in Note (F). The options
terminate upon the termination of the option holder's employment with
the Company or BankUnited, unless the option holder's option agreement
provides otherwise in the event of termination by retirement,
disability, death or for reasons other than cause. The exercise price
of the option is the fair market value of the stock covered by each
such option on the date of grant. "Fair market value per share" is the
average of the mean between the closing dealer bid and ask prices as
quoted on the Nasdaq National Market for each of the last five days on
which such stock was traded, including the date of grant.
(C) Does not include the options granted to employees who are also
directors as partial payment for directors' fees. See "Election of
Directors--Compensation of Directors" and Note (D).
(D) These options to acquire shares of Class A Common were granted as
partial payment of the named executive officers' directors' fees for
their service on the Board of Directors of the Company and BankUnited.
See "Election of Directors--Compensation of Directors."
(E) The potential realizable values of the options to acquire Class B
Common were calculated assuming that the underlying shares of Class B
Common were converted, pursuant to the terms of that class, into shares
of Class A Common on a one-for-one basis.
(F) These options were granted under the Company's 1994 Incentive Stock
Option Plan (the "Incentive Plan"). Under the terms of the grant, all
shares of Class A Common Stock, as determined by the Board, the option
shall become exercisable for one-third of the total shares covered by
the option in each year of the three-year period beginning January
1996.
1996 STOCK OPTION EXERCISES. The named executive officers did not
exercise any stock options during the 1996 fiscal year.
EXECUTIVE EMPLOYMENT AGREEMENTS
The Board of Directors of the Company has approved employment
agreements between the Company and BankUnited with Mr. Camner, Mrs. Ford, Mr.
Milne and Mr. Dougherty. The employment agreements provide for one- year terms
that may be renewed annually by the Board. The Agreements may be terminated at
any time by the Company and, with the exception of Mr Camner's, do not provide
for severance payments if terminated prior to a change in control.
The employment agreements provide for annual salaries and the usual
benefits afforded to employees of the Company and BankUnited, such as medical,
disability and life insurance benefits, as may be determined by the Board of
Directors. In addition, the agreements provide for lump sum severance payments
in the event the executive officer's employment is terminated following a change
in control of the Company (as defined in the agreements). The executive officer
would be entitled to a severance payment if, after a change in control, or if
his or her employment were terminated or by reason of the executive officer's
death or disability, or if terminated by the Company for a reason other than
"cause" (as defined in the agreements). The amount of the severance payments
provided for in the agreements is based on the executive officer's seniority,
salary and length of service with the Company and BankUnited. Except with
respect to Mr. Camner and Mrs. Ford, if the executive officer terminates his or
her employment for "good reason" (as defined in the agreements) when permitted
by the agreements, the agreements provide for severance payments in lesser
amounts. The agreements also provide for medical insurance benefits for up to
one year following such a termination.
11
<PAGE>
Mr. Camner's agreement includes certain additional benefits, such as
additional insurance benefits. Mr. Camner may be awarded an annual bonus, which
may consist of cash and stock, in an amount to be determined by the Compensation
Committee. His agreement also provides for incentive compensation as determined
in his agreement. Mr. Camner's agreement requires a lump sum severance payment
equal to three times the average of his annual compensation (including bonuses
and other amounts included in his gross income for federal income tax purposes)
for the prior five calendar years upon a termination by the Company, other than
for cause, by reason of death or disability, or by Mr. Camner after a change in
control. Mr. Camner's agreement also allows for certain benefits following
termination of his employment with the Company. These benefits include
continuation of certain medical, group and supplemental life insurance for up to
two years, personal use of an automobile for two years, the right to purchase,
at book value, the equity membership in up to two country clubs which the
Company maintained during his employment, and the transfer to him of two $1
million life insurance policies maintained by the Company on his life.
If the executive officers had been entitled to severance payments
pursuant to the agreements during 1996, the maximum severance payments would
have been as follows: Mr. Camner, $541,785; Mr. Milne, $226,000; Mrs. Ford,
$263,670 and Mr. Dougherty, $291,383. Any payments made pursuant to the
agreements, however, would be subject to the limitations set forth in Section
280G of the Internal Revenue Code of 1986, as amended.
REPORT ON EXECUTIVE COMPENSATION
Pursuant to the rules of the Securities and Exchange Commission, set
forth below is the report of the Compensation Committee and the Board of
Directors regarding their compensation policies for the fiscal year ended
September 30, 1996 for the Company's and BankUnited's executive officers,
including the Chief Executive Officer. THIS REPORT SHALL NOT BE DEEMED
INCORPORATED BY REFERENCE BY ANY GENERAL STATEMENT INCORPORATING BY REFERENCE
THIS PROXY STATEMENT INTO ANY FILING UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR THE SECURITIES EXCHANGE ACT OF 1934 (THE "EXCHANGE ACT"),
EXCEPT TO THE EXTENT THAT THE COMPANY SPECIFICALLY INCORPORATES THIS INFORMATION
BY REFERENCE, AND SHALL NOT OTHERWISE BE DEEMED FILED UNDER SUCH ACTS.
GENERAL. Decisions regarding the compensation of the Company's and
BankUnited's executive officers are made, depending on the officer's seniority
or the type of compensation, by the Compensation Committee or the Board of
Directors. The Compensation Committee is responsible for setting the salaries
and cash bonuses for the four most senior officers of the Company (Alfred R.
Camner, James A. Dougherty, Earline G. Ford and Lawrence H. Blum) and for stock
bonuses and stock option grants to all executive officers pursuant to the
Company's stock option plans. The Executive Committee of the Bank is responsible
for establishing all remaining executive officers' salaries and cash bonuses.
The Company's overall executive compensation policies are intended to
establish levels of annual compensation that are consistent with the its annual
and long-term goals and that reward superior corporate performance as well as
individual achievements. The officer's position and duties with the Company and
BankUnited and his or her participation in the Company's and BankUnited's
employee benefit plans, such as the stock option plans and stock bonus plan, are
also considered.
12
<PAGE>
The compensation of the Company's executive officers includes three
components, as discussed below:
BASE SALARY: In setting executive salary levels for 1996, the Board and
the Compensation Committee considered the Company's performance in the 1995
fiscal year, in particular the growth of the Company's assets and deposits. The
Compensation Committee also considered the Company's aggressive growth strategy,
which included opening several new branches, and pursuing in-market
acquisitions of other financial institutions.
The Board and the Compensation Committee also considered the Company's
prospects for 1996 and, in particular, weighed the challenges facing the Company
in improving its earnings levels in light of anticipated interest rate trends
and continued regulatory and other pressures on the industry. To the extent
consistent with the Company's long-term goals, the Board and the Compensation
Committee attempt to establish compensation levels that are competitive within
the industry and the Company's market areas to enable it to attract and retain
qualified executives.
Additionally, because BankUnited operates in the closely regulated
thrift industry, the Board and the Compensation Committee gave significant
consideration to the guidelines set forth in the regulations and regulatory
bulletins of the Office of Thrift Supervision regarding executive compensation
and the various criteria established by sound business practices for determining
the reasonableness of compensation paid to executive officers. The Board and the
Compensation Committee have carefully reviewed such guidelines and believe the
Company's compensation policies and practices are consistent with them.
The weight allocated to the various factors, described above, that are
considered by the Board of Directors and the Compensation Committee when setting
executive compensation, is subjective and not pursuant to a specific formula.
ANNUAL INCENTIVES: The Company provides two types of annual incentives
to its executive officers: cash bonuses, which are awarded by the Board of
Directors, and stock bonuses, which are granted by the Compensation Committee.
It is the Company's policy to provide incentives that reward what the Board
views as above-average results in light of the competitive and other factors
affecting the Company's operating environment. The Compensation Committee
determines the amount of each year's stock bonus by reviewing the Company's
performance for the particular year and the current market value of the Class A
Common. In addition to the Company's performance, the Board considers the
officer's roles, activities and services performed for the Company and
BankUnited when determining annual cash bonuses. The weight given to each such
factor, however, is subjective.
LONG-TERM INCENTIVES: The Board uses long-term stock incentives as a
means to relate executives' compensation to the interests of the Company's
stockholders. In 1996, the Board used certain performance-based criteria in
determining the number of shares covered by each option to be granted. In
particular, the Board considered the Company's implementation of an aggressive
growth strategy, which included opening new branches, acquiring other financial
institutions, and raising capital through public and private financings.
Further, the Board implemented a vesting schedule for options granted to
executive officers, other than Alfred R. Camner and Earline G. Ford, in which
each option will become exercisable for one-third of the total shares covered by
the option in each year of the three-year period beginning January 1996. The
Board believes that this vesting schedule will encourage the executive officers
to make long-term commitments to the Company and BankUnited. The Board believes
that the market performance during the 1996 fiscal year of the Class A Common as
compared to the peer group index (see the "Stock Price Performance Graph,"
below) demonstrates that the Company's management
13
<PAGE>
policies have resulted in value created for the Company's stockholders
comparable to shares of other publicly traded savings institutions. The stock
option grants have enabled the executive officers to realize benefits from the
appreciation in the price of the Class A Common while maintaining the
relationship between executive compensation levels and the interests of the
Company's stockholders. Other factors that the Board considers in determining
the amount of stock options granted to a particular officer are position, tenure
with the Company (although no pre-determined weighting is given to each such
factor). The Board has determined that performance and vesting criteria such as
those described above will be used in determining the 1997 option grants,
although such criteria have not been finalized.
CHIEF EXECUTIVE OFFICER'S 1996 COMPENSATION. As with all of the
Company's executive officers, the compensation for Mr. Camner consists of base
salary, annual incentives and long-term compensation. The Chief Executive
Officer's salary and annual cash bonus are determined by the Compensation
Committee, the stock bonus is granted by the Compensation Committee and the
stock options are awarded by the Board of Directors.
Corporate performance is especially important to the Compensation
Committee when establishing the Chief Executive Officer's base salary and cash
bonus. The Compensation Committee believes that the Chief Executive Officer has
played a central role during his tenure with the Company in framing the
management and investment policies that have caused the Company's and
BankUnited's performance in the 1996 fiscal year to improve as compared to the
1995 fiscal year. In particular, Mr. Camner has implemented an aggressive growth
strategy for the Company and BankUnited which has entailed opening new branches
and pursuing in-market acquisitions. The Board and the Compensation Committee
consider similar factors for establishing annual cash and stock awards for Mr.
Camner as for other executive officers, as discussed above. In determining Mr.
Camner's compensation, the weight given to the various criteria considered by
the committees and the Board is subjective and not pursuant to a specific
formula.
The Internal Revenue Code of 1986, as amended, limits the deductibility
for federal income tax purposes of annual compensation paid by a publicly held
company to its chief executive officer and four other highest paid executives
for amounts greater than $1 million unless certain conditions are met. The
Company's compensation levels have been such that the provision has not affected
the determination of executive compensation to date. The Company currently is
studying the limit on deductibility and is monitoring its compensation levels
and intends, when necessary, to make a determination of whether and how it will
comply.
COMPENSATION COMMITTEE: BOARD OF DIRECTORS:
ALLEN M. BERNKRANT ALLEN M. BERNKRANT
MARC D. JACOBSON LAWRENCE H. BLUM
ALFRED R. CAMNER
CHRISTINA CUERVO MIGOYA
JAMES A. DOUGHERTY
EARLINE G. FORD
BRUCE FRIESNER
PATRICIA L. FROST
MARC D. JACOBSON
MARC LIPSITZ
NEIL MESSINGER, M.D.
ANNE W. SOLLOWAY
14
<PAGE>
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
As described above under "Election of Directors--Meetings and
Committees of the Board of Directors," the current members of the Compensation
Committee are Allen M. Bernkrant, Marc D. Jacobson and Neil Messinger. Mr.
Jacobson served as a Director and Secretary of the Company and BankUnited in
1996.
During the 1996 fiscal year, the Company paid Head-Beckham Insurance
Agency, Inc. ("Head-Beckham") the sum of approximately $147,000 for insurance
premiums on the Company's and BankUnited's directors' and officers' liability,
banker's blanket bond, commercial multi-peril and workers' compensation
policies, of which approximately $20,604 represented the agency's commissions.
The Company also obtains its group major medical, long-term disability and life
insurance through Head-Beckham, although all premiums for such policies are paid
directly to the insurer. Mr. Jacobson is a vice president of Head-Beckham. The
Company believes that the premiums paid for policies obtained through
Head-Beckham are comparable to those that would be paid for policies obtained
through unaffiliated agencies. The Company expects to continue using the
services of Head-Beckham.
The Company and BankUnited employ the law firm of Stuzin and Camner,
Professional Association ("Stuzin and Camner"), as general counsel. Alfred R.
Camner, Chief Executive Officer, President and a director of the Company and
BankUnited, is the senior managing director of Stuzin and Camner. Earline G.
Ford, Executive Vice President, Treasurer and a director of the Company and
BankUnited, was the legal administrator of Stuzin and Camner until October,
1996. Marc Lipsitz, director of the Company, is the managing director of Stuzin
and Camner. During the 1996 fiscal year, Stuzin and Camner received
approximately $986,000 in legal fees from the Company allocable to mortgage loan
closings, foreclosures, corporate and other matters. A substantial portion of
the fees allocable to mortgage loan closings are reimbursed by borrowers.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
From time to time, BankUnited makes loans in the ordinary course of
business to its directors, officers and employees, as well as members of their
immediate families and affiliates, to the extent consistent with applicable laws
and regulations. All of such loans are and have been made on substantially the
same terms, including interest rates and collateral, as those prevailing at the
time for comparable transactions with other persons and do not involve more than
the normal risk of collectibility or present other unfavorable features.
See "--Compensation Committee Interlocks and Insider Participation"
above for information regarding transactions with Head-Beckham and Stuzin and
Camner.
15
<PAGE>
STOCK PRICE PERFORMANCE GRAPH
The following graph presents a comparison of the cumulative total
stockholder return on the Company's Class A Common with the Nasdaq Stock Market
Index and the Dow Jones Savings & Loan Index. This graph assumes that $100 was
invested on September 30, 1991 in the Company's Class A Common and in the other
indices, and that all dividends were reinvested. The stock price performance
shown below is not necessarily indicative of future price performance.
COMPARISON OF FIVE-YEAR CUMULATIVE TOTAL RETURN*
AMONG BANKUNITED FINANCIAL CORPORATION, NASDAQ STOCK MARKET INDEX
AND DOW JONES SAVINGS & LOAN INDEX
SEPTEMBER 30,
--------------------------------------------
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- ----
BankUnited Financial Corp. 100 298 367 272 327 338
NASDAQ Stock Market--U.S. 100 112 147 148 204 243
Dow Jones Savings & Loan 100 87 114 113 148 177
- ----------------------
*$100 Invested on 9/30/91 in stock or index including reinvestment of dividends.
Fiscal Year Ending September 30.
THIS GRAPH SHALL NOT BE DEEMED INCORPORATED BY REFERENCE BY ANY GENERAL
STATEMENT INCORPORATING BY REFERENCE THIS PROXY STATEMENT INTO ANY FILING UNDER
THE SECURITIES ACT OR THE EXCHANGE ACT, EXCEPT TO THE EXTENT THAT THE COMPANY
SPECIFICALLY INCORPORATES THIS INFORMATION BY REFERENCE, AND SHALL NOT OTHERWISE
BE DEEMED FILED UNDER SUCH ACTS.
16
<PAGE>
PROPOSAL TWO: APPROVAL OF THE 1996 INCENTIVE COMPENSATION AND
STOCK AWARD PLAN
The Company's Board of Directors believes that attracting and retaining
executives and other key employees of high quality is essential to the Company's
growth and success. In addition, the long-term success of the Company will be
enhanced by a comprehensive compensation program which may include different
types of incentives for motivating executives and rewards for outstanding
service, including awards that link compensation to measures of the Company's
performance. In this regard, stock options and other stock-related awards have
been and will continue to be an important element of compensation for executives
because such awards enable executives to increase their proprietary interest in
the Company and thereby promote a closer identity of interests between
executives and the Company's stockholders. The Board has concluded also that a
greater portion of an executive's total compensation should be linked to
measures of the performance, and that payment of a portion of such compensation
in the form of restricted stock would provide an additional stock-based
incentive for the creation of stockholder value. Such awards would provide an
increased incentive for executives to expend their maximum efforts for the
success of the Company's business.
Accordingly, on November 14, 1996, the Company's Compensation Committee
established and the Board of Directors adopted, subject to stockholder approval,
the 1996 Plan. The flexible terms of the 1996 Plan provides for grants of
options, a variety of other stock-related awards, and annual incentive awards
that will be settled in part in cash and in part by the grant of restricted
stock ("Awards"). The 1996 Plan is intended to provide flexible terms to permit
such Committee (or other Board committee that may administer the 1996 Plan) (the
"Committee") to enter into compensatory arrangements that promote the
compensation goals and policies discussed above in the "Compensation Committee
Report on Executive Compensation."
The Board of Directors is requesting stockholder approval of the 1996
Plan in order to comply with requirements of The Nasdaq Stock Market, to qualify
certain stock options as incentive stock options ("ISOs") under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), and to comply with
other applicable federal and state laws.
DESCRIPTION OF THE 1996 PLAN
The following is a brief description of the material features of the
1996 Plan. Such description is qualified in its entirety by reference to the
full text of the 1996 Plan, a copy of which is attached as Exhibit A to this
Proxy Statement.
SHARES SUBJECT TO THE 1996 PLAN. Under the 1996 Plan, a total of
550,000 shares of the Company's Series I Class A Common Stock and the Class B
Common Stock (which together shall be referred to as "Common Stock") and 100,000
shares of the Series B Preferred Stock (the Common Stock and the Series B
Preferred Stock shall be referred to as the "Shares") are reserved and available
for issuance to participants in connection with Awards. Each share of Class B
Common Stock is convertible into 1 share of Class A Common Stock and each share
of Series B Preferred Stock is convertible into 1.4959 shares of Class B Common
Stock which may be converted into Class A Common Stock as stated above. Shares
subject to a forfeited or expired Award or to an Award that is settled in cash
or otherwise terminated without issuance of
17
<PAGE>
Shares to the participant again become available under these limitations, but
Shares withheld by the Company to satisfy withholding tax obligations are
treated as issued to the participant under the 1996 Plan. Shares issued under
the 1996 Plan may be either newly issued Shares or treasury Shares. On January
__, 1997, the last reported sale price of the Class A Common Stock, the only
publicly traded stock issuable under the 1996 Plan, was $______ per share.
The Committee is authorized to adjust the number and kind of Shares
subject to the aggregate Share limitations under the 1996 Plan and subject to
outstanding Awards (including adjustments to exercise prices of options and
other affected terms of Awards) in the event that a dividend or other
distribution (whether in cash, Shares, or other property), recapitalization,
forward or reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or Share exchange, or other similar corporate
transaction or event affects the Shares such that an adjustment is appropriate
in order to prevent dilution or enlargement of the rights of participants under
the 1996 Plan. The Committee is also authorized to adjust performance conditions
and other terms of Awards in response to these kinds of events or to change, in
applicable laws, regulations, or accounting principles.
ELIGIBILITY. Executive officers and other key employees of the Company
and its subsidiaries, including any director or officer who is also an employee,
are eligible to be granted Awards under the 1996 Plan.
ADMINISTRATION. The 1996 Plan is administered by the Committee. Subject
to the terms and conditions of the 1996 Plan, the Committee is authorized to
select participants, determine the type and number of Awards to be granted and
the number of Shares to which Awards will relate, specify times at which Awards
will be exercisable or settled (including performance conditions that may be
required as a condition thereof), set other terms and conditions of such Awards,
prescribe forms of Award agreements, interpret and specify rules and regulations
relating to the 1996 Plan, and make all other determinations which may be
necessary or advisable for the administration of the 1996 Plan. The 1996 Plan
provides that Committee members shall not be personally liable, and shall be
fully indemnified, in connection with any action, determination, or
interpretation taken or made in good faith under the 1996 Plan.
STOCK OPTIONS. The Committee is authorized to grant stock options,
including both ISOs which can result in potentially favorable tax treatment to
the participant and nonqualified stock options (i.e., options not qualifying as
ISOs). The exercise price per Share subject to an option is determined by the
Committee, but must not be less than the fair market value of a Share on the
date of grant. The maximum term of each option, the times at which each option
will be exercisable, and provisions requiring forfeiture of unexercised options
at or following termination of employment, generally is fixed by the Committee.
Options may be exercised by payment of the exercise price in cash having a fair
market value equal to the exercise price, as the Committee may determine from
time to time. Methods of exercise and settlement are determined by the
Committee.
RESTRICTED STOCK. The Committee is authorized to grant restricted
stock. Restricted stock is a grant of Shares which may not be sold of disposed
of, and which may be forfeited in the event of certain terminations of
employment, prior to the end of the specified restricted period. The restricted
period is established by the Committee. A participant granted restricted stock
generally has
18
<PAGE>
all of the rights of a stockholder of the Company, including the right to vote
the Shares and to receive dividends thereon, unless otherwise determined by the
Committee.
INCENTIVE AWARDS. The Committee is authorized to grant incentive
awards, in the form of cash and/or restricted stock, upon achievement of
preestablished performance objectives.
Subject to the requirements of the 1996 Plan, the Committee will
determine incentive award terms, including the required levels of performance
with respect to the business criteria, the corresponding amounts payable upon
achievement of such levels or performance, and the extent to which such Awards
will be settled in cash and in restricted stock.
BONUS STOCK AND AWARDS IN LIEU OF CASH OBLIGATION. The Committee is
authorized to grant Shares as a bonus free of restrictions, or to grant Shares
or other Awards in lieu of Company obligations to pay cash under other plans or
compensatory arrangement, subject to such terms as the Committee may specify.
OTHER TERMS OF AWARDS. Awards may be settled in cash, Shares, other
Awards, or other property, in the discretion of the Committee. The Committee may
condition any payment relating to an Award on the withholding of taxes and may
provide that a portion of any Shares or other property to be distributed will be
withheld (or previously acquired Shares or other property surrendered by the
participant) to satisfy withholding and other tax obligations.
Awards under the 1996 Plan are generally granted without a requirement
that the participant pay consideration in the form of cash or property for the
grant (as distinguished from the exercise), except to the extent required by
law. The Committee may, however, grant Awards in substitution for other Awards
under the 1996 Plan, awards under other Company plans, or other rights to
payment from the Company, and may grant Awards in addition to and in tandem with
such other Awards, awards, or rights as well.
ACCELERATION OF VESTING. The Committee may, in its discretion,
accelerate the exercisability, the lapsing of restrictions, or the expiration of
deferral periods of any Award, and such accelerated exercisability, lapse, and
expiration shall occur automatically in the case of a "change in control" of the
Company. Subject to certain exceptions, the 1996 Plan defines a "change in
control" as (i) if any person, who does not currently hold 10% or more of the
combined voting power of the securities of the Company becomes a beneficial
owner of securities representing 50% or more of the combined voting power of the
securities of the Company (ii) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent entity) 50% or more of the combined voting power of the
voting securities of the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person acquired 50% or more of the combined voting power of the
Company's then outstanding securities; or (iii) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect).
19
<PAGE>
AMENDMENT AND TERMINATION OF THE 1996 PLAN. The Board of Directors may
amend, alter, suspend, discontinue, or terminate the 1996 Plan or the
Committee's authority to grant Awards without further stockholder approval,
except stockholder approval must be obtained if required by law or regulation or
under the rules of any stock exchange or automated quotation system on which the
Shares are then listed or quoted. Thus, stockholder approval, for example, will
be required for any material increase in the number of Shares available for
award to executive officers under the 1996 Plan, but will not necessarily be
required for amendments which might increase the cost of the 1996 Plan or
broaden eligibility. Stockholder approval will not be deemed to be required
under laws or regulations, such as those relating to ISOs, that condition
favorable treatment of participants on such approval, although the Board may, in
its discretion, seek stockholder approval in any circumstance in which it deems
such approval advisable. Unless earlier terminated by the Board, the 1996 Plan
will terminate at such time as no Shares remain available for issuance under the
1996 Plan and the Company has no further rights or obligations with respect to
outstanding Awards under the 1996 Plan.
NEW PLAN BENEFITS
The initial stock option award authorization for the 1997 fiscal year
provides for awards ranging from 727 shares to a maximum 9,848 shares. The
following table set forth the annual performance based stock option awards
authorized under the 1996 Plan in respect of the 1996 performance year to be
awarded to the persons who were Named Executives and specified groups of
executive officers and employees, subject to stockholder approval of the 1996
Plan:
<TABLE>
<CAPTION>
1996 EXECUTIVE INCENTIVE COMPENSATION AND STOCK AWARD PLAN
NAME AND POSITION ANNUAL INCENTIVE AWARD
----------------- ----------------------
<S> <C>
Alfred R. Camner............................................. 9,848
Chairman, President and Chief
Executive Officer
Earline G. Ford.............................................. 2,424
Executive Vice President and Treasurer
James A. Dougherty........................................... 2,424
Executive Vice President
Samuel A. Milne.............................................. 2,424
Executive Vice President and Chief
Financial Officer
All Executive Officers as a Group (4 in number)............. 17,120
All Other Employees (including current officers
who are not executive officers of the Company)............ 4,606
</TABLE>
20
<PAGE>
In the event that stockholders do not approve the 1996 Plan, the
previously contemplated annual performance based stock option awards under the
1996 Plan will not be made.
FEDERAL INCOME TAX IMPLICATIONS OF THE 1996 PLAN. The following is a
brief description of the Federal income tax consequences generally arising with
respect to Awards under the 1996 Plan.
The grant of an option will create no tax consequences for the
participant or the Company. A participant will not have taxable income upon
exercising an ISO (except that the alternative minimum tax may apply). Upon
exercising an option other than an ISO, the participant must generally recognize
ordinary income equal to the difference between the exercise price and fair
market value of the freely transferable and nonforfeitable Shares acquired on
the date of exercise.
Upon a disposition of Shares acquired upon exercise of an ISO before
the end of the applicable ISO holding periods, the participant must generally
recognize ordinary income equal to the lesser of (i) the fair market value of
the Shares at the date of exercise of the ISO minus the exercise price of (ii)
the amount realized upon the disposition of the ISO shares minus the exercise
price. Otherwise, a participant's disposition of Shares acquired upon the
exercise of an option generally will result in short-term or long-term capital
gain or loss measured by the difference between the sale price and the
participant's tax basis in such Shares (generally, the exercise price plus any
amount previously recognized as ordinary income in connection with the exercise
of the option).
The Company generally will be entitled to a tax deduction equal to the
amount recognized as ordinary income by the participant in connection with
options. The Company generally is not entitled to a tax deduction relating to
amounts that represent a capital gain to a participant. Accordingly, the Company
will not be entitled to any tax deduction with respect to an ISO if the
participant holds the shares for the applicable ISO holding periods prior to
disposition of the shares.
With respect to Awards granted under the 1996 Plan that may be settled
either in cash or in Shares or other property that is either not restricted as
to transferability or not subject to a substantial risk of forfeiture, the
participant must generally recognize ordinary income equal to the cash or the
fair market value of Shares or other property received. The Company generally
will be entitled to a deduction for the same amount. With respect to Awards
involving Shares or other property that is restricted as to transferability and
subject to a substantial risk of forfeiture, the participant must generally
recognize ordinary income equal to the fair market value of the Shares or other
property received at the first time the Shares or other property becomes
transferable or not subject to a substantial risk of forfeiture, whichever
occurs earlier. The Company will be entitled to a deduction in an amount equal
to the ordinary income recognized by the participant. A participant may elect to
be taxed at the time of receipt of Shares or other property rather than upon
lapse of restrictions on transferability or the substantial risk of forfeiture,
but if the participant subsequently forfeits such Shares or other property he
would not be entitled to any tax deduction, including as a capital loss, for the
value of the Shares or property on which he previously paid tax. The participant
must file such election with the Internal Revenue Service within 30 days of the
receipt of the Shares of other property.
The foregoing discussion, which is general in nature, is intended for
the information of stockholders considering how to vote at the Annual Meeting
and not as tax guidance to participants
21
<PAGE>
in the 1996 Plan. Different tax rules may apply, including in the case of
variations in transactions that are permitted under the 1996 Plan (such as
payment of the exercise price of an option by surrender of previously acquired
Shares), and with respect to a participant who is subject to Section 16 of the
Exchange Act when he or she acquires Shares in a transaction that would
otherwise result in taxation within six months after the grant of the Award.
This discussion does not address the effects of other federal taxes (including
possible "golden parachute" excise taxes) or taxes imposed under state, local,
or foreign tax laws. Accordingly, participants are urged to consult a tax
advisor as to their individual circumstances.
VOTE REQUIRED. Adoption of the proposal to approve the 1996 Plan
requires the affirmative vote of holders of a majority of the total votes cast
in person or by proxy and entitled to vote at the Annual Meeting.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR APPROVAL OF
THE 1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN.
PROPOSAL THREE: AMENDMENT OF THE ARTICLES OF INCORPORATION PERTAINING TO THE
AMENDMENT OF THE STATEMENTS OF DESIGNATION FOR THE COMPANY'S 8%
PREFERRED STOCK AND 9% PREFERRED STOCK
The Board is requesting stockholder approval of amendments to Article
IV of its Articles of Incorporation, which if approved, would amend Appendix F
and Appendix G to Article IV, the Statements of Designation pertaining to,
respectively, the 8% Preferred Stock and the 9% Preferred Stock to delete
Section 2(g) of each such Appendix, would redesignate Section 2(h) and 2(i) of
Appendix F as Sections 2(g) and 2(h), respectively, and would redesignate
Section 2(h) of Appendix G as Section 2(g). Each such Section 2(g) prohibits the
Company from purchasing or otherwise acquiring shares of the 8% Preferred Stock
or the 9% Preferred Stock. Reference is made to the terms of each such Section
2(g) which is presented in its entirety in Exhibit B hereto.
These proposed amendments to the 8% Preferred Stock and the 9%
Preferred Stock will allow the Company to retire shares of the 8% Preferred
Stock and the 9% Preferred Stock by open market or other purchases when deemed
advantageous by the Board.
VOTE REQUIRED. Adoption of the proposal to amend the Articles of
Incorporation pertaining to the amendment of the Statements of Designation for
the 8% Preferred Stock and the 9% Preferred Stock requires the affirmative vote
of holders of a majority of the total votes cast by the holders of the Class A
Common, the Class B Common and the Series B Preferred Stock voting together as a
class and a majority of the holders of the 8% Preferred Stock and the 9%
Preferred Stock voting together as a class, in person or by proxy and entitled
to vote on Proposal Three.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR APPROVAL OF
THE AMENDMENT OF THE ARTICLES OF INCORPORATION PERTAINING TO THE AMENDMENT OF
THE STATEMENTS OF DESIGNATION FOR THE COMPANY'S 8% PREFERRED STOCK AND THE
COMPANY'S 9% PREFERRED STOCK.
22
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 15,
1996 concerning (i) each director of the Company; (ii) the Chief Executive
Officer; (iii) all directors and executive officers of the Company and
BankUnited as a group; and (iv) each other person known to management of the
Company to be the beneficial owner, as such term is defined in Rule 13d-3 under
the Exchange Act, of more than 5% of the outstanding shares of each class of the
Company's voting securities, according to filings by such persons with the
Securities and Exchange Commission.
<TABLE>
<CAPTION>
AMOUNT AMOUNT AMOUNT
AND NATURE AND NATURE AND NATURE
OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF
OWNERSHIP SERIES B OWNERSHIP CLASS B OWNERSHIP CLASS A
OF SERIES B PREFERRED OF CLASS B COMMON OF CLASS A COMMON
NAME AND ADDRESS PREFERRED(1) OUTSTANDING COMMON(1) OUTSTANDING(1) COMMON(1) OUTSTANDING(1)
- -------------------------------- -------------- ----------- ------------- -------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS:
Allen M. Bernkrant 23,560 12.82% 37,860 13.08% 84,703 1.10%
P.O. Box 56-1122 (2)(3) (4)
Miami, FL 33256-1122
Lawrence H. Blum 23,560 12.82% 65,354 20.62% 167,526 2.16%
SunTrust Building - 10th Floor (2)(3)(5) (4)
1 Southeast Third Avenue
Miami, FL 33131
Alfred R. Camner 71,018 38.63% 717,991 86.87% 844,089 10.05%
255 Alhambra Circle (2)(5)(6) (7)
Coral Gables, FL 33134
Irving P. Cohen -- -- -- -- 35,400 .46%
Thompson, Hine and Flory
1920 N Street, N.W., Suite 800
Washington, D.C. 20036
Christina Cuervo Migoya -- -- -- -- 1,746 .02%
1600 S. Miami Avenue
Miami, FL 33129
James A. Dougherty -- -- -- -- 55,007 .71%
255 Alhambra Circle
Coral Gables, FL 33134
Albert J. Finch -- -- -- -- 140,810 1.83%
15 Dogwood Road
Hollywood, FL 33021
Earline G. Ford 5,000 2.72% 354,152 61.62% 383,729 4.78%
255 Alhambra Circle (2)(3)(5) (4)
Coral Gables, FL 33134
</TABLE>
(FOOTNOTES FOLLOWING.)
23
<PAGE>
<TABLE>
<CAPTION>
AMOUNT AMOUNT AMOUNT
AND NATURE AND NATURE AND NATURE
OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF
OWNERSHIP SERIES B OWNERSHIP CLASS B OWNERSHIP CLASS A
OF SERIES B PREFERRED OF CLASS B COMMON OF CLASS A COMMON
NAME AND ADDRESS PREFERRED(1) OUTSTANDING COMMON(1) OUTSTANDING(1) COMMON(1) OUTSTANDING(1)
- -------------------------------- -------------- ----------- ------------- -------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS:
Bruce Friesner -- -- -- -- 7,917 .10%
5431 North 36th Court
Hollywood, FL 33021
Patricia L. Frost -- -- -- -- 5,843 .08%
255 Alhambra Circle (4)(8)
Coral Gables, FL 33134
Elia J. Giusti -- -- -- -- 113,189 1.47%
Lee Giusti Realty, Inc.
3101 N. Federal Hwy. #503
Fort Lauderdale, FL 33306-1042
Marc D. Jacobson 10,000 5.44% 43,540 14.76% 126,306 1.63%
3050 Biscayne Boulevard (2)(3)(5) (4)
Fourth Floor
Miami, FL 33137
Marc Lipsitz -- -- -- -- 14,242 .19%
550 Biltmore Way
Suite 700
Coral Gables, FL 33134
Norman E. Mains -- -- -- -- 36,500 .47%
Chicago Mercantile Exchange
10 South Wacker Drive
North Tower - 6th Floor
Chicago, II 60606
Neil Messinger, M.D. -- -- -- -- 4,080 .05%
10801 S.W. 93rd Court
Miami, FL 33176
Anne W. Solloway -- -- 31,856 12.25% 39,148 .51%
8124 S.W. 87th Terrace (3)(5) (7)
Miami, FL 33143
</TABLE>
(FOOTNOTES FOLLOWING.)
24
<PAGE>
<TABLE>
<CAPTION>
AMOUNT AMOUNT AMOUNT
AND NATURE AND NATURE AND NATURE
OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF OF BENEFICIAL PERCENT OF
OWNERSHIP SERIES B OWNERSHIP CLASS B OWNERSHIP CLASS A
OF SERIES B PREFERRED OF CLASS B COMMON OF CLASS A COMMON
NAME AND ADDRESS PREFERRED(1) OUTSTANDING COMMON(1) OUTSTANDING(1) COMMON(1) OUTSTANDING(1)
- -------------------------------- -------------- ----------- ------------- -------------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS:
All current directors and 133,138 72.43% 1,262,669 95.36% 2,147,928 23.45%
executive officers of the (9) (9)
Company and BankUnited
as a group (21 persons)
OTHER 5% OWNERS:
Phillip Frost, M.D. and -- -- -- -- 997,905 11.74%
Frost-Nevada, Limited Partnership (10)
8800 N.W. 36th Street
Miami, Florida 33178
Charles B. Stuzin 16,560 9.01% 81,563 25.92% 108,772 2.45%
550 Biltmore Way (5)(11)
Suite 700
Coral Gables, Florida 33134
James M. Stuzin 7,000 3.81% 60,090 22.94 61,672 .80%
550 Biltmore Way (13) (13)
Suite 700
Coral Gables, Florida 33134
Ruth E. Stuzin -- -- 13,686 5.44% 13,686 .18%
550 Biltmore Way (14)
Suite 700
Coral Gables, Florida 33134
Harvey Miller 13,560 7.38% 20,354 7.49% 40,520 .53%
SunTrust Building - 10th Floor (15)
1 Southeast Third Avenue
Miami, Florida 33131
Barry Shulman 13,560 7.38% 20,284 7.46% 92,521 1.20%
3999 N.E. 15th Avenue (15) (16)
Ft. Lauderdale, FL 33334
</TABLE>
- ------------------------
* Less than 1%.
25
<PAGE>
(1) The nature of the reported beneficial ownership as of December 15, 1996
is unshared voting and investment power unless otherwise indicated in
the footnotes to this table. Class B Common ownership of the persons
listed includes shares of Class B Common that would be issued upon the
conversion of shares of Series B Preferred owned by such persons and
the exercise of options granted to such persons to acquire Class B
Common. Ownership by the persons listed of Class A Common, which is the
Company's publicly traded class, includes shares of Class A Common that
would be issued upon the conversion of shares of Series B Preferred,
Series 1993 Preferred, Series 1996 Preferred, and Class B Common
beneficially owned by them and the exercise of options to acquire Class
A Common and Class B Common granted to them. Each share of Series B
Preferred is convertible into 1.4959 shares of Class B Common. Each
share of Class B Common is convertible into one share of Class A
Common. At December 15, 1996, each share of Series 1993 Preferred and
Series 1996 Preferred is convertible into one share and 1.67 shares of
Class A Common, respectively. Alfred Camner is Anne W. Solloway's son.
(2) Includes 35,243, 35,243, 106,235, 7,479 and 14,959 shares of Class B
Common that would be issued upon the conversion of shares of Series B
Preferred held individually by each of Allen Bernkrant, Lawrence Blum,
Alfred R. Camner, Earline G. Ford and Marc D. Jacobson, respectively.
(3) Includes 2,617, 30,111, 315,774, 28,511 and 4,218 shares of Class B
Common that may be acquired individually by each of Allen Bernkrant,
Lawrence Blum, Earline G. Ford, Marc D. Jacobson and Anne W. Solloway,
respectively, through currently exercisable options under the Company's
Non-Statutory Plan.
(4) Includes 6,556, 17,075, 4,594, 3,767, and 6,690 shares of Class A
Common that may be acquired by each of Allen Bernkrant, Lawrence Blum,
Earline G. Ford, Patricia Frost and Marc D. Jacobson, respectively,
through currently exercisable options granted under the Company's
Non-Statutory Plan.
(5) Includes 25,894 shares of Class B Common that may be acquired by each
of the persons indicated through currently exercisable options granted
to the original organizers of BankUnited.
(6) Includes 468,744 shares of Class B Common that may be acquired by
Alfred R. Camner through currently exercisable options under the
Non-Statutory Plan. Also includes, pursuant to a durable power of
attorney given by Mrs. Solloway to Mr. Camner, 4,218 shares of Class B
Common owned by her, 25,894 shares of Class B Common that may be
acquired by her through options described in Note (5) above, and 1,744
shares of Class B Common that may be acquired by her through currently
exercisable options under the Non-Statutory Plan. Also includes 1,914
shares of Class B Common owned by Mr. Camner's wife, for which he has
been granted a proxy.
(7) Includes 4,710 shares of Class A Common that may be acquired by each
of Alfred R. Camner and Anne W. Solloway through currently exercisable
options under the Non-Statutory Plan. Mr. Camner also has beneficial
ownership of Mrs. Solloway's shares through a durable family power of
attorney.
(8) Does not include the shares of Series C or C-II Preferred or Class A
Common beneficially owned by Patricia Frost's husband (see Note 11).
(FOOTNOTES CONTINUED ON NEXT PAGE.)
26
<PAGE>
(9) Includes an aggregate of 873,395 shares of Class B Common and 194,013
shares of Class A Common that may be acquired through currently
exercisable options, as described in this Note and in Notes (3) through
(7) and (9) above.
(10) This amount includes the conversion of shares of Series C and C-II
Preferred beneficially owned by Dr. Frost and Frost-Nevada, Limited
Partnership, but does not include shares beneficially owned by Patricia
Frost, Dr. Frost's wife and a director of the Company and BankUnited.
(11) Includes 24,772 shares of Class B Common that would be issued upon the
conversion of the shares of Series B Preferred held by him, 6,843
shares of Class B Common held by a family partnership of which he is a
general partner, and 12,500 shares of Class B Common that may be
acquired by him through currently exercisable options under the
Non-Statutory Plan.
(12) Reflects shares of Series B Preferred held as trustee of a trust for
the benefit of certain family members.
(13) Includes 10,471 shares of Class B Common that would be issued upon the
conversion of 7,000 shares of Series B Preferred and 49,619 shares of
Class B Common held as trustee of a family trust, and 6,843 shares of
Class B Common held as general partner of a family partnership.
(14) Includes 6,843 shares of Class B Common owned of record by a family
partnership, of which Ruth E. Stuzin has been given voting power
pursuant to a revocable proxy.
(15) Includes 20,284 shares of Class B Common that would be issued upon
the conversion of 13,560 shares of Series B Preferred held by each of
Barry Shulman and Harvey Miller.
(16) Includes 12,500 shares of Class A Common that would be issued upon
the conversion of 12,500 shares of Series 1993 Preferred held by Barry
Shulman.
27
<PAGE>
MISCELLANEOUS
COMPLIANCE WITH SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Exchange Act requires the Company's executive
officers, directors and persons who own more than 10% of a registered class of
the Company's equity securities to file reports of ownership and changes in
ownership with the SEC and the National Association of Securities Dealers, Inc.
Executive officers, directors and 10% stockholders are required by regulation to
furnish the Company with copies of all such Section 16(a) filings made. The
Company believes that, during the fiscal year ended September 30, 1996, its
officers, directors and holders of more than 10% of the Company's Class A Common
complied with all applicable Section 16(a) filing requirements, except as
follows:
1. Phillip Frost, a greater-than-ten percent beneficial owner,
and his wife, Patricia Frost, a director, who file jointly,
failed to file a Form 5 for the fiscal year ended September
30, 1995, which was required to be filed on or before November
14, 1996. As compensation for serving as a director Mrs. Frost
received 625 shares of Class A Common Stock and 1,508 options
to acquire Class A Common Stock. Dr. and Mrs. Frost filed a
Form 4 reporting the above-mentioned compensatory transactions
on December 10, 1996.
INDEPENDENT AUDITORS
The Audit Committee recommended and the Board of Directors approved the
selection of the accounting firm of Price Waterhouse LLP to audit the Company's
financial statements for the 1997 fiscal year. Price Waterhouse LLP audited the
Company's financial statements for the 1996 fiscal year. Representatives of
Price Waterhouse LLP are expected to be present at the Annual Meeting and will
have an opportunity to make a statement if they desire to do so and to respond
to appropriate questions from stockholders.
STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be presented at the Company's
1998 Annual Meeting of Stockholders must be in writing and be received by the
Secretary of the Company at its executive offices, 255 Alhambra Circle, Coral
Gables, Florida 33134, no later than August 18, 1997 for inclusion in the
Company's proxy statement relating to such meeting, subject to applicable rules
and regulations.
By Order of the Board of Directors
ALFRED R. CAMNER
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
January 17, 1997
28
<PAGE>
EXHIBIT A
BANKUNITED FINANCIAL CORPORATION
1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN
1. PURPOSE. The purpose of this 1996 Incentive Compensation and Stock
Award Plan (the "Plan") is to assist BankUnited Financial Corporation (the
"Company") and its subsidiaries and affiliates in attracting, motivating,
retaining and rewarding high-quality executives and other employees, officers,
directors and independent contractors enabling such persons to acquire or
increase a proprietary interest in the Company in order to strengthen the
mutuality of interests between such persons and the Company's stockholders, and
providing such persons with annual and long term performance incentives to
expend their maximum efforts in the creation of shareholder value.
2. DEFINITIONS.
For purposes of the Plan, the following terms shall be defined as set
forth below:
(a) "Affiliate" means any entity other than the Company and
its Subsidiaries that is designated by the Board or the Committee as a
participating employer under the Plan, provided that the other entity is under
common control with the Company.
(b) "Award" means any Option, Stock Bonus or Stock
Award in Lieu of Cash, or Other Stock-Based Award, granted to a Participant
under the Plan.
(c) "Award Agreement" means any written agreement,
contract, or other instruments or document evidencing an Award.
(d) "Beneficiary" means the person, persons, trust or trusts
which have been designated by such Participant in his or her most recent written
beneficiary designation filed with the Company to receive the benefits specified
under this Plan upon the death of the Participant, or, if there is no designed
Beneficiary or surviving designated Beneficiary, then the person, persons, trust
or trusts entitled by will or the laws of descent and distribution to receive
such benefits.
(e) "Board" means the Board of Directors of the Company.
(f) "Change in Control" means Change in Control as
defined with related terms in Section 8.
(g) "Code" means the Internal Revenue Code of 1986, as amended
from time to time. References to any provision of the Code shall be deemed to
include successor provisions thereto and regulations thereunder.
A-1
<PAGE>
(h) "Committee" means the Compensation Committee of the Board,
or such other Board committee as may be designed at the Board to administer the
Plan; provided, however, that the Committee shall consist solely of two or more
directors of the Company. In appointing members of the Committee, the Board will
consider whether each member will qualify as an "outside director" within the
meaning of Rule 16b-3(b)(3).
(i) "Company" means BankUnited Financial Corporation, a
corporation organized under the laws of the State of Florida, or any successor
corporation.
(j) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time. References to any provision of the Exchange Act
shall be deemed to include successor provisions thereto and regulations
thereunder.
(k) "Fair Market Value" means, with respect to Stock, Awards,
or other property, the fair market value of such Stock, Awards, or other
property determined by such methods or procedures as shall be established from
time to time by the Board or the Committee. Unless otherwise determined by the
Board or the Committee in good faith, the Fair Market Value of Stock as of any
given date shall mean the per share value of Stock as determined by using the
mean between the high and low bid prices of such Stock as quoted on NASDAQ on
the immediately preceding five days on which the stock was traded, as reported
for such date in the table contained in The Wall Street Journal or an equivalent
successor table.
(l) "ISO" means any Option intended to be and designated as an
incentive stock option within the meaning of Section 422 of the Code.
(m) "NQSO" means any Option that is not an ISO.
(n) "Option" means a right, granted to a Participant under
Section 6(b), to purchase Stock or other Awards. An Option may be either an ISO
or an NQSO.
(o) "Participant" means a person who, as an executive officer,
officer, director, or employee or independent contractor of the Company (which
includes employees of Subsidiaries or Affiliates), has been granted an Award
under the Plan.
(p) "Restricted Stock" means an award of shares of Stock to a
Participant under Section 6(d) that may be subject to certain restrictions and
to a risk of forfeiture.
(q) "Plan" means this 1996 Incentive Compensation and Stock
Award Plan.
(r) "Rule 16b-3" means Rule 16b-3, as from time to time in
effect and applicable to the Plan and Participants, promulgated by the
Securities and Exchange Commission under Section 16 of the Exchange Act.
(s) "Stock" means the Series I Class A Common Stock, the Class
B Common Stock (which together shall be referred to as "Common Stock"), or the
Noncumulative Convertible
A-2
<PAGE>
Preferred Stock (" Series B Preferred Stock"), Series B Preferred Stock of the
Company or such other securities as may be substituted or resubstituted therefor
pursuant to Section 5.
(t) "Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if each
of the corporations (other than the last corporation in the unbroken chain) owns
stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporation in the chain.
3. ADMINISTRATION.
(a) AUTHORITY OF THE COMMITTEE. Except as otherwise provided
herein, the Plan shall be administered by the Committee. The Committee shall
have full and final authority to take the following actions, in each case
subject to and consistent with the provisions of the Plan:
(i) to select Participants to whom Awards may
be granted;
(ii) to designate Affiliates;
(iii) to determine the type or types of Awards
to be granted to each Participant;
(iv) to determine the type and number of Awards to be
granted, the number and type of shares of Stock to which an Award may
relate, the terms and conditions of any Award granted under the Plan
(including, but not limited to, any exercise price, grant price, or
purchase price, any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or forfeiture,
exercisability, or settlement of an Award, and waivers or accelerations
thereof, and waivers of performance conditions relating to an Award,
based in each case on such considerations as the Committee shall
determine), and all other matters to be determined in connection with
an Award;
(v) to determine whether, and to what extent the
right of a Participant to exercise or receive a grant or settlement of
any Award, and the timing thereof, may be subject to such performance
conditions as may be specified by the Committee. The Committee may use
such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions, and may
exercise its discretion to reduce or increase the amounts payable under
any Award subject to performance conditions;
(vi) to determine whether, to what extent, and under
what circumstances an Award may be settled or the exercise price of an
Award may be cancelled, forfeited, exchanged, or surrendered;
(vii) to determine whether, to what extent, and under
what circumstances an Award will be deferred either automatically, at
the election of the Committee, or at the election of the Participant,
and whether to create trusts and deposit Stock or other property
therein;
A-3
<PAGE>
(viii) to prescribe the form of each Award
Agreement, which need not be identical for each Participant;
(ix) to adopt, amend, suspend, waive, and rescind
such rules and regulations and appoint such agents as the Committee may
deem necessary or advisable to administer the Plan;
(x) to correct any defect or supply any omission or
reconcile any inconsistency in the Plan and to construe and interpret
the Plan and any Award, rules and regulations, Award Agreement, or
other instrument hereunder; and
(xi) to make all other decisions and determinations
as may be required under the terms of the Plan or as the Committee may
deem necessary or advisable for the administration of the Plan.
Other provisions of the Plan notwithstanding, the Board may perform any function
of the Committee under the Plan, including without limitation for the purpose of
ensuring that transactions under the Plan by Participants who are then subject
to Section 16 of the Exchange Act in respect of the Company are exempt under
Rule 16b-3. In any case in which the Board is performing a function of the
Committee under the Plan, each reference to the Committee herein shall be deemed
to refer to the Board.
(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. Any action of
the Committee with respect to the Plan shall be final, conclusive, and binding
on all persons, including the Company, Subsidiaries, Affiliates, Participants,
any person claiming any rights under the Plan from or through any Participant,
and stockholders. The express grant of any specific power to the Committee, and
the taking of any action by the Committee, shall not be construed as limiting
any power or authority of the Committee. The Committee may delegate to officers
or managers of the Company or any Subsidiary the authority, subject to such
terms as the Committee shall determine, to perform administrative functions and
such other functions as the Committee may determine, to the extent permitted
under applicable law.
(c) LIMITATION OF LIABILITY. Each member of the Committee
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any officer or other employee of the
Company or any Subsidiary or Affiliate, the Company's independent certified
public accountants, or other professional retained by the Company to assist in
the administration of the Plan. No member of the Committee, nor any officer or
employee of the Company acting on behalf of the Committee, shall be personally
liable for any action, determination, or interpretation taken or made in good
faith with respect to the Plan, and all members of the Committee and any officer
or employee of the Company or its Subsidiaries acting on their behalf shall, to
the extent permitted by law, be fully indemnified and protected by the Company
with respect to any such action, determination, or interpretation.
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<PAGE>
4. ELIGIBILITY.
(a) GENERALLY. Executive officers, officers, directors,
employees and independent contractors of the Company, including employees of the
Company's Subsidiaries and Affiliates who are responsible for or contribute to
the management, growth and/or profitability of the business of the Company or
its Subsidiaries are eligible to be granted Awards under the Plan.
5. STOCK SUBJECT TO THE PLAN; ADJUSTMENT.
(a) NUMBER OF SHARES. Subject to adjustment as hereinafter
provided, the number of shares of Common Stock for which Options may be granted
under the Plan shall be 400,000, and the number of shares of Common Stock which
may be issued in connection with Stock Bonuses, Stock Awards in lieu of cash or
other Stock-Based Awards shall be 150,000, provided however that to the extent
that the total number of shares of Common Stock does not exceed 550,000 the
Committee may reallocate the split between the number of shares of Common Stock
for which Options may be granted and the number of shares of Common Stock which
may be issued in connection with Stock Bonuses, Stock Awards in lieu of cash or
other Stock-Based Awards. Additionally, subject to adjustment as hereinafter
provided the number of shares of Series B Preferred Stock, for which Options may
be granted and which may be issued in connection with Stock Bonuses, Stock
Awards in lieu of cash or other Stock-Based Awards shall be 100,000.
(b) MANNER OF COUNTING SHARES. If any shares subject to an
Award are forfeited, cancelled, exchanged, or surrendered or such Award
otherwise terminates without a distribution of shares to the Participant such
number of shares will again be available for Awards under the Plan. The
Committee may make determinations and adopt regulations for the counting of
shares relating to any Awards to ensure appropriate counting, avoid double
counting (in the case of tandem or substitute awards), and provide for
adjustments in any case in which the number of shares actually distributed
differs from the number of shares previously counted in connection with such
Award.
(c) TYPE OF SHARES DISTRIBUTABLE. Any shares of Stock
distributed pursuant to an Award may consist, in whole or in part, of authorized
and unissued shares or treasury shares, including shares acquired by purchase in
the open market or in private transactions.
(d) ADJUSTMENTS. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Stock, or other property) which is special, large, and non-recurring,
recapitalization, stock split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Stock such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Participants under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems appropriate and, in such manner as
it may deem equitable, adjust any or all of (i) the number and kind of shares of
Stock which may thereafter be issued in connection with Awards, (ii) the number
of and kind of shares of Stock issued or issuable in respect of outstanding
Awards or, if deemed appropriate, make provisions for payment of cash or other
property with respect to any outstanding Award, and (iii) the exercise price,
grant price, or purchase price relating to any
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Award; provided, however, in each case that, with respect to ISOs, such
adjustment shall be made in accordance with Section 424(h) of the Code, unless
the Committee determines otherwise. In addition, the Committee is authorized to
make adjustments in the terms and conditions of, and the criteria and
performance objectives included in Awards, in recognition of unusual or
non-recurring events (including, without limitation, events described in the
preceding sentence, as well as acquisitions and dispositions of businesses and
assets) affecting the Company or any Subsidiary, or business unit, or the
financial statements thereof, or in response to changes in applicable laws,
regulations, accounting principles, tax rates and regulations, or business
conditions or in view of the Committee's assessment of the business strategy of
the Company, a Subsidiary, or business unit thereof, performance of comparable
organizations, economic and business conditions, personal performance of a
Participant, and any other circumstances deemed relevant.
6. SPECIFIC TERMS OF AWARDS.
(a) GENERAL. Awards may be granted on the terms and conditions
set forth in this Section 6. In addition, the Committee may impose on any Award
or the exercise thereof, at the date of grant or thereafter (subject to Section
9(e)), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including terms
regarding forfeiture of Awards or continued exercisability of Awards in the
event of termination of employment by the Participant.
(b) OPTIONS. The Committee is authorized to grant Options
to Participants on the following terms and conditions:
(i) EXERCISE PRICE. The exercise price per share of
Stock purchasable under an Option shall be determined by the Committee;
provided, however, that, except as provided in Section 7(a), such
exercise price shall be not less than the Fair Market Value of a share
on the date of grant of such Option, and in no event shall the exercise
price for the purchase of shares be less than par value.
(ii) TIME AND METHOD OF EXERCISE. The Committee shall
determine at the date of grant or thereafter the time or times at which
an Option may be exercised in whole or in part, the methods by which
such exercise price may be paid or deemed to be paid, the form of such
payment, including, without limitation, cash, Stock, other Awards,
notes or other property, and the methods by which Stock will be
delivered or deemed to be delivered to Participants (including, without
limitation, deferral of delivery of shares under a deferral
arrangement).
(iii) ISOS. The terms of any ISO granted under the
Plan shall comply in all respects with the provisions of Section 422 of
the Code.
(c) RESTRICTED STOCK. The Committee is authorized to grant
Restricted Stock to Participants on the following terms and conditions:
(i) ISSUANCE AND RESTRICTIONS. Restricted
Stock shall be subject to such restrictions on transferability and other
restrictions, if any, as the committee may impose at the date
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of grant or thereafter, which restrictions may lapse separately or in
combination at such times, under such circumstance, in such installments, or
otherwise, as the Committee may determine. Except to the extent restricted under
the Award Agreement relating to the Restricted Stock, a Participant granted
Restricted Stock shall have all of the rights of a stockholder including,
without limitation, the right to vote Restricted Stock and the right to receive
dividends thereon.
(ii) FORFEITURE. Except as otherwise
determined by the Committee, at the date of grant or thereafter, upon
termination of employment (as determined under criteria established by the
Committee) during the applicable restriction period, Restricted Stock, and any
accrued but unpaid dividends or Dividend Equivalents, that is or are then
subject to a risk of forfeiture shall be forfeited; provided, however, that the
Committee may provide, by rule or regulation or in any Award Agreement, or may
determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Stock will be waived in whole or in part in the event of
terminations resulting from specified causes, and the Committee may in other
cases waive in whole or in part the forfeiture of Restricted Stock.
(iii) CERTIFICATES FOR STOCK. Restricted Stock
granted under the Plan may be evidenced in such manner as the Committee shall
determine. If certificates representing Restricted Stock are registered in the
name of the participant, such certificates shall bear an appropriate legend
referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, the Company shall retain physical possession of the
certificate, and the Company may require the Participant to deliver a stock
power, endorsed in blank, relating to the Restricted Stock.
(iv) DIVIDENDS. Dividends paid on Restricted
Stock shall be either paid at the dividend payment date in cash or in shares of
unrestricted Stock having a Fair Market Value equal to the amount of such
dividends, or the payment of such dividends shall be deferred or the amount or
value thereof automatically reinvested in additional Restricted Stock,
Restricted Stock Units, other Awards, or other investment vehicles, as the
Committee shall determine or permit the Participant to elect. Stock distributed
in connection with a Stock split or Stock dividend, and other property
distributed as a dividend, shall be subject to restrictions and a risk of
forfeiture to the same extent as the Restricted Stock with respect to which such
Stock or other property has been distributed.
(d) RESTRICTED STOCK UNITS. The Committee is authorized
to grant Restricted Stock Units to Participants, subject to the following terms
and conditions:
(i) AWARD AND RESTRICTIONS. Delivery of Stock
or cash, as the case may be, will occur upon expiration of the deferral period
specified for Restricted Stock Units by the Committee (or, if permitted by the
Committee, as elected by the participant). In addition, Restricted Stock Units
shall be subject to such restrictions as the Committee may impose, if any, at
the date of grant or thereafter, which restrictions may lapse at the expiration
of the deferral period or at earlier or later specified times, separately or in
combination, in installments or otherwise, as the Committee may determine.
(ii) FORFEITURE. Except as otherwise determined
by the Committee, at the date of grant or thereafter, upon termination of
employment (as determined under criteria established by the Committee) during
the applicable deferral period or portion thereof to which forfeiture conditions
apply (as provided in the Award Agreement evidencing the Restricted Stock
Units), or
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upon failure to satisfy any other material conditions precedent to the delivery
of Stock or cash to which such Restricted Stock Units relate, all Restricted
Stock Units, and any accrued but unpaid Dividend Equivalents, that are at that
time subject to a risk of forfeiture shall be forfeited; provided, however, that
the Committee may provide, by rule or regulation or in any Award Agreement, or
may determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Stock Units will be waived in whole or in part in the
event of termination resulting from specified causes, and the Committee may in
other cases waive in whole or in part the forfeiture of Restricted Stock Units.
(e) STOCK BONUSES AND STOCK AWARDS IN LIEU OF CASH AWARDS. The
Committee is authorized to grant Stock as a bonus, or to grant other Awards, in
lieu of Company commitments to pay cash under other plans or compensatory
arrangements. Stock or Awards granted hereunder shall have such other terms as
shall be determined by the Committee.
(f) OTHER STOCK-BASED AWARDS. The Committee is authorized,
subject to limitations under applicable law, to grant to Participants such other
Awards that may be denominated or payable in, valued in whole or in part by
reference to, or otherwise based on, or related to, Stock or other securities,
as deemed by the Committee to be consistent with the purposes of the Plan,
including, without limitation, rights convertible or exchangeable into Stock or
such securities, purchase rights for Stock or such other securities, and Awards
with value or payment contingent upon performance of the Company, or a
Subsidiary, or upon any other factor or performance condition designated by the
Committee. The Committee is authorized to make cash awards pursuant to this
Section 6(d) as an element of or supplement to any other Award under the Plan.
7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
(a) STAND-ALONE, ADDITIONAL, TANDEM AND SUBSTITUTE AWARDS.
Awards granted under the Plan may, in the discretion of the Committee, be
granted either alone or in addition to, in tandem with, or in exchange or
substitution for, any other Award granted under the Plan or any award granted
under any other plan of the Company, any Subsidiary or Affiliate, or any
business entity to be acquired by the Company or a Subsidiary or Affiliate, or
any other right of a Participant to receive payment from the Company or any
Subsidiary or Affiliate. Awards may be granted in addition to or in tandem with
such other Awards or awards may be granted either as of the same time as or a
different time from the grant of such other Awards or awards. The per share
exercise price of any Option, or purchase price of any other Award conferring a
right to purchase Stock which is granted, in connection with the substitution of
awards granted under any other plan of the Company or any Subsidiary or
Affiliate or any business entity to be acquired by the Company or any Subsidiary
or Affiliate, shall be determined by the Committee, in its discretion, and may,
to the extent the Committee determines necessary in order to preserve the value
of such other award, be less than the Fair Market Value of a share on the date
of grant of such substitute Award.
(b) TERMS OF AWARDS. The term of each Award shall be for such
period as may be determined by the Committee; provided, however, that in no
event shall the term of any ISO granted in tandem therewith exceed a period of
ten years from the date of its grant (or such shorter period as may be
applicable under Section 422 of the Code).
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(c) FORM OF PAYMENT UNDER AWARDS. Subject to the terms of the
Plan and any applicable Award Agreement, payments to be made by the Company upon
the grant, maturation, or exercise of an Award may be made in such forms as the
Committee shall determine at the date of grant or thereafter, including, without
limitation, cash, Stock, or other property, and may be made in a single payment
or transfer, in installments, or on a deferred basis. The Committee may make
rules relating the installment or deferred payments with respect to Awards,
including the rate of interest to be credited with respect to such payments.
(d) RULE 16B-3 COMPLIANCE.
(i) SIX-MONTH HOLDING PERIOD. Unless a Participant
could otherwise dispose of equity securities, including derivative
securities, acquired under the Plan without incurring liability under
Section 16(b) of the Exchange Act, equity securities acquired under the
Plan must be held for a period of six months following the date of such
acquisition, provided that this condition shall be satisfied with
respect to a derivative security if at least six months elapse from the
date of acquisition of the derivative security to the date of
disposition of the derivative security (other than upon exercise or
conversion) or its underlying equity security.
(ii) OTHER COMPLIANCE PROVISIONS. With respect to a
Participant who is then subject to Section 16 of the Exchange Act in
respect of the Company, the Committee shall implement transactions
under the Plan and administer the Plan in a manner that will ensure
that each transaction by such a Participant is exempt from liability
under Rule 16b-3, exempt that such a Participant may be permitted to
engage in a non-exempt transaction under the Plan if written notice has
been given to the Participant regarding the non-exempt nature of such
transaction. Unless otherwise specified by the Participant, equity
securities, including derivative securities, acquired under the Plan
which are disposed of by a Participant shall be deemed to be disposed
of in the order acquired by the Participant.
8. CHANGE IN CONTROL PROVISIONS.
(a) ACCELERATION UPON CHANGE IN CONTROL. In the event
of a "Change in Control," as defined in this Section:
(i) any Award carrying a right to exercise that
was not previously exercisable and vested shall become fully
exercisable and vested; and
(ii) the restrictions, deferral limitations, and
forfeiture conditions applicable to any other Award granted under the
Plan shall lapse and such Awards shall be deemed fully vested, and any
performance conditions imposed with respect to Awards shall be deemed
to be fully achieved.
(b) "CHANGE IN CONTROL" DEFINED. For purposes of the
Plan, a "Change in Control" shall have occurred if:
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(i) any "person," as such term is used in Sections
13(d) and 14(d) of the Exchange Act (other than the Company; any
trustee or other fiduciary holding securities under an employee benefit
plan of the Company; any corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company; or any person or group of
persons who as of the date of approval of this Plan by the Board of
Directors of the Company owns, directly or indirectly 10% or more of
the combined voting power of the securities of the Company), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's
then outstanding voting securities;
(ii) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity) 50%
or more of the combined voting power of the voting securities of the
Company or such surviving or parent entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no "person" (as hereinabove defined) acquired 50%
or more of the combined voting power of the Company's then outstanding
securities; or
(iii) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect).
9. GENERAL PROVISIONS.
(a) COMPLIANCE WITH LEGAL AND EXCHANGE REQUIREMENTS. The Plan,
the granting and exercising of Awards thereunder, and the other obligations of
the Company under the Plan and any Award Agreement, shall be subject to all
applicable federal and state laws, rules and regulations, and to such approvals
by any regulatory or governmental agency as may be required. The Company, in its
discretion, may postpone the issuance or delivery of Stock under any Award until
completion of such stock exchange listing or registration or qualification of
such Stock or other required action under any state, federal or foreign law,
rule or regulation as the Company may consider appropriate, and may require any
Participant to make such representations and furnish such information as it may
consider appropriate in connection with the issuance or delivery of Stock in
compliance with applicable laws, rules and regulations.
(b) NONTRANSFERABILILTY. Except as otherwise provided in this
Section 9(b), Awards shall not be transferable by a Participant other than by
will or the laws of descent and distribution or pursuant to a designation of a
Beneficiary, and Awards shall be exercisable during the lifetime of a
Participant only by such Participant or his guardian or legal representative. In
addition, except as otherwise provided in this Section 9(b), no rights under the
Plan may be pledged, mortgaged, hypothecated, or otherwise encumbered, or
subject to the claims of creditors. The foregoing notwithstanding, the Committee
may, in its sole discretion, provide that Awards (or rights or interests
therein) other than ISOs and Awards in tandem with ISOs shall be transferable,
including but not limited to permitting transfers, without consideration, to a
Participant's immediate family members
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<PAGE>
(I.E., spouse, children, or grandchildren, as well as the Participant), to
trusts for the benefit of such family members are the only parties, or other
transfers deemed by the Committee to be not inconsistent with the purposes of
the Plan.
(c) NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor any
action taken thereunder shall be construed as giving any employee the right to
be retained in the employ of the Company or any of its Subsidiaries or
Affiliates, nor shall it interfere in any way with the right of the Company or
any of its Subsidiaries or Affiliates to terminate any employee's employment at
any time.
(d) TAXES. The Company or any Subsidiary or Affiliate is
authorized to withhold from any Award granted, any payment relating to an Award
under the Plan, including from a distribution of Stock, or any payroll or other
payment to a Participant, amounts of withholding and other taxes due in
connection with any transaction involving an Award, and to take such other
action as the Committee may deem advisable to enable the Company and
Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Award. This authority shall include
authority to withhold or receive Stock or other property and to make cash
payments in respect thereof in satisfaction of a Participant's tax obligations.
(e) CHANGES TO THE PLAN AND AWARDS. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or the Committee's authority
to grant Awards under the Plan without the consent of stockholders or
Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Company's stockholders within one year after such Board action if such
stockholder approval is required by any federal law or regulation or the rules
of any stock exchange or automated quotation system on which the Stock may then
be listed or quoted; provided, however, that, without the consent of an affected
Participant, no amendment, alteration, suspension, discontinuations, or
termination oft he Plan may materially adversely affect the rights of such
Participant under any Award theretofore granted to him or her. The Committee may
waive any conditions or rights under, or amend, alter, suspend, discontinue, or
terminate any Award theretofore granted and any Award Agreement relating
thereto: provided, however, that, without the consent of an affected
Participant, no such amendment, alteration, suspension, discontinuation, or
termination of any Award may materially adversely affect the rights of such
Participant under such Awards. Following the occurrence of a Change in Control,
the Board may not terminate this Plan or amend this Plan in any manner adverse
to Participants.
(f) NO RIGHT TO AWARDS; NO STOCKHOLDER RIGHTS. No Participant
or employee shall have any claim to be granted any Award under the Plan, and
there is no obligation for uniformity of treatment of Participants and
employees. No Award shall confer on any Participant any of the rights of a
stockholder of the Company unless and until Stock is duly issued or transferred
to the Participant in accordance with the terms of the Award.
(g) UNFUNDED STATUS OF AWARDS AND TRUSTS. The Plan is intended
to constitute an "unfunded" plan for incentive and deferred compensation. With
respect to any payments not yet made to a Participant pursuant to an Award,
nothing contained in the Plan or any Award shall give any such Participant any
rights that are greater than those of a general creditor of the Company;
provided, however, that the Committee may authorize the creation of trusts or
make other arrangements to meet the Company's obligations under the Plan to
deliver cash, Stock, other Awards, or other property
A-11
<PAGE>
pursuant to any Award, which trusts or other arrangements shall be consistent
with the "unfunded" status of the Plan unless the Committee otherwise determines
with the consent of each affected Participant. If an to the extent authorized by
the Committee, the Company may deposit into such a trust Stock or other assets
for delivery tot he Participant in satisfaction of the Company's obligations
under any Award. If so provided by the Committee, upon such a deposit of Stock
or other assets for the benefit of a Participant, there shall be substituted for
the rights of the Participant to receive delivery of Stock and other payments
under the Plan a right to receive the assets of the trust (to the extent that
the deposited Stock or other assets represented the full amount of the Company's
obligation under the Award at the date of deposit). The trustee of the trust may
be authorized to dispose of trust assets and reinvest the proceeds in
alternative investments, subject to such terms and conditions as the Committee
may specify and in accordance with applicable law.
(h) NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the
Plan by the Board nor its submission to the stockholders of the Company for
approval shall be construed as creating any limitations on the power of the
Board to adopt such other incentive arrangements as it may deem desirable,
including without limitation, the granting of stock options and other awards
otherwise than under the Plan, and such arrangements may be either applicable
generally or only in specific cases.
(i) NO FRACTIONAL SHARES. No fractional shares of Stock shall
be issued or delivered pursuant to the Plan or any Award. The Committee shall
determine whether cash, other Awards, or other property shall be issued or paid
in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise eliminated.
(j) GOVERNING LAW. The validity, construction, and effect of
the Plan, any rules and regulations relating to the Plan, and any Award
Agreement shall be determined in accordance with the laws of the state of
Florida, without giving effect to principles of conflicts of laws, and
applicable federal law.
(k) EFFECTIVE DATE AND APPROVAL DATE; PLAN TERMINATION. The
Plan shall become effective upon approval by the Board of Directors (the
"Effective Date"), provided, however, that the Plan shall be subject to the
subsequent approval by the affirmative votes of the holders of a majority of
voting securities present in person or represented by proxy, and entitled to
vote on the subject matter, at a meeting of Company stockholders duly held in
accordance with the Florida Corporation Code, or any adjournment thereof in
accordance with applicable provisions of the Florida Corporation Code, such
stockholder approval to be obtained not later than one year after the Effective
Date (the "Approval Date"). Any Awards granted under the Plan prior to such
approval of stockholders shall be subject to such approval and in the absence of
such approval, such Awards shall be null and void. Unless earlier terminated by
the Board, authority to grant Awards under the Plan will terminate ten years
after the Effective Date; provided, however, that ISOs may not be granted later
than ten years after the Effective Date. The Plan will terminate at such time
and the Company has no further obligations with respect to any Award granted
under the Plan.
(l) TITLE AND HEADINGS. The titles and headings of the
sections in the Plan are for convenience of reference only. In the event of
any conflict, the text of the Plan, rather than such titles or headings, shall
control.
A-12
<PAGE>
EXHIBIT B
AMENDMENTS TO APPENDIX F AND APPENDIX G OF ARTICLES OF
INCORPORATION OF BANKUNITED FINANCIAL CORPORATION
Section 2(g) of the Statement of Designation of the 8% Preferred Stock,
Series 1993 currently provides:
"(g) The Corporation, directly or indirectly, shall not
purchase or otherwise acquire any shares of the Series 1993 Preferred
Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of the Series 1993 Preferred Stock
pursuant to a purchase or exchange offer made on the same terms to all
holders of all outstanding shares of the Series 1993 Preferred Stock or
pursuant to the exercise of the conversion right provided in Section 3
hereof."
Section 2(g) of the Statement of Designation of the 9% Preferred Stock
currently provides:
"(g) The Corporation, directly or indirectly, shall not
purchase or otherwise acquire any shares of the Perpetual Preferred
Stock; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of the Perpetual Preferred Stock
pursuant to a purchase or exchange offer made on the same terms to all
holders of all outstanding shares of the Perpetual Preferred Stock."
B-1
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE
H. BLUM or any one of them with full power of substitution, proxies to vote at
the Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on February 18, 1997 at 11:00 a.m., local time, and at any
adjournment thereof, hereby revoking any proxies heretofore given, to vote all
shares of Noncumulative Convertible Preferred Stock, Series B of the Company
held or owned by the undersigned as directed on the reverse side of this proxy
card, and in their discretion upon such other matters as may come before the
meeting.
(To be signed on Reverse Side) SEE REVERSE
SIDE
|X| Please mark your
votes as in this
example.
1. Election of Directors
Nominees: A. Class I For Withold
Marc D. Jacobson |_| |_|
Albert J. Finch
Marc Lipsitz
Neil Messinger, M.D.
Anne W. Solloway
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
B. Class II For Withold
Elia J. Giusti |_| |_|
C. Class III For Withold
Norman E. Mains |_| |_|
Irving P. Cohen
Bruce Friesner
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
2. Approval of 1996 Incentive For Against Abstain
Compensation and Stock |_| |_| |_|
Award Plan
3. Amendment to Articles of For Against Abstain
Incorporation |_| |_| |_|
Please mark, sign, date and return this
Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly
executed will be voted in the manner
directed by the undersigned shareholder,
UNLESS CONTRARY DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature______________________________________ Date___________________________
Signature______________________________________ Date___________________________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon.
When signing in a representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE
H. BLUM or any one of them with full power of substitution, proxies to vote at
the Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on February 18, 1997 at 11:00 a.m., local time, and at any
adjournment thereof, hereby revoking any proxies heretofore given, to vote all
shares of Class B Common Stock of the Company held or owned by the undersigned
as directed on the reverse side of this proxy card, and in their discretion upon
such other matters as may come before the meeting.
(To be signed on Reverse Side) SEE REVERSE
SIDE
|X| Please mark your
votes as in this
example.
1. Election of Directors
Nominees: A. Class I For Withold
Marc D. Jacobson |_| |_|
Albert J. Finch
Marc Lipsitz
Neil Messinger, M.D.
Anne W. Solloway
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
B. Class II For Withold
Elia J. Giusti |_| |_|
C. Class III For Withold
Norman E. Mains |_| |_|
Irving P. Cohen
Bruce Friesner
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
2. Approval of 1996 Incentive For Against Abstain
Compensation and Stock |_| |_| |_|
Award Plan
3. Amendment to Articles of For Against Abstain
Incorporation |_| |_| |_|
Please mark, sign, date and return this
Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly
executed will be voted in the manner
directed by the undersigned shareholder,
UNLESS CONTRARY DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature______________________________________ Date___________________________
Signature______________________________________ Date___________________________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon.
When signing in a representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE
H. BLUM or any one of them with full power of substitution, proxies to vote at
the Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on February 18, 1997 at 11:00 a.m., local time, and at any
adjournment thereof, hereby revoking any proxies heretofore given, to vote all
shares of 9% Noncumulative Perpetual Preferred Stock of the Company held or
owned by the undersigned as directed on the reverse side of this proxy card,
and in their discretion upon such other matters as may come before the meeting.
(To be signed on Reverse Side) SEE REVERSE
SIDE
|X| Please mark your
votes as in this
example.
1. Amendment to Articles of For Against Abstain
Incorporation |_| |_| |_|
Please mark, sign, date and return this
Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly
executed will be voted in the manner
directed by the undersigned shareholder,
UNLESS CONTRARY DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature______________________________________ Date___________________________
Signature______________________________________ Date___________________________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon.
When signing in a representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE
H. BLUM or any one of them with full power of substitution, proxies to vote at
the Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on February 18, 1997 at 11:00 a.m., local time, and at any
adjournment thereof, hereby revoking any proxies heretofore given, to vote all
shares of Class A Common Stock of the Company held or owned by the undersigned
as directed on the reverse side of this proxy card, and in their discretion upon
such other matters as may come before the meeting.
(To be signed on Reverse Side) SEE REVERSE
SIDE
|X| Please mark your
votes as in this
example.
1. Election of Directors
Nominees: A. Class I For Withold
Marc D. Jacobson |_| |_|
Albert J. Finch
Marc Lipsitz
Neil Messinger, M.D.
Anne W. Solloway
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
B. Class II For Withold
Elia J. Giusti |_| |_|
C. Class III For Withold
Norman E. Mains |_| |_|
Irving P. Cohen
Bruce Friesner
To withhold authority to vote for any
nominee, write full name of nominee on
the line below: ______________________
______________________________________
2. Approval of 1996 Incentive For Against Abstain
Compensation and Stock |_| |_| |_|
Award Plan
3. Amendment to Articles of For Against Abstain
Incorporation |_| |_| |_|
Please mark, sign, date and return this
Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly
executed will be voted in the manner
directed by the undersigned shareholder,
UNLESS CONTRARY DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature______________________________________ Date___________________________
Signature______________________________________ Date___________________________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon.
When signing in a representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE
H. BLUM or any one of them with full power of substitution, proxies to vote at
the Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on February 18, 1997 at 11:00 a.m., local time, and at any
adjournment thereof, hereby revoking any proxies heretofore given, to vote all
shares of 8% Noncumulative Convertible Preferred Stock of the Company held or
owned by the undersigned as directed on the reverse side of this proxy card,
and in their discretion upon such other matters as may come before the meeting.
(To be signed on Reverse Side) SEE REVERSE
SIDE
|X| Please mark your
votes as in this
example.
1. Amendment to Articles of For Against Abstain
Incorporation |_| |_| |_|
Please mark, sign, date and return this
Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly
executed will be voted in the manner
directed by the undersigned shareholder,
UNLESS CONTRARY DIRECTION IS GIVEN, THIS
PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature______________________________________ Date___________________________
Signature______________________________________ Date___________________________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon.
When signing in a representative capacity, please give title.
