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:
[ ] Preliminary Proxy Statement
[ ] Confidential, for use of the Commission only (as permitted by
Rule 14a-6(e)(2))
[X] 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 computed
pursuant to Exchange Act Rule 0-11:_____________________________________
4) Proposed maximum aggregate value of transaction:________________________
5) Total fee paid:_________________________________________________________
[ ] Fee paid previously with preliminary materials.
[ ] 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, JANUARY 26, 1998
NOTICE IS HEREBY GIVEN that the 1998 Annual Meeting of Stockholders
(the "Annual Meeting") of BankUnited Financial Corporation (the "Company") will
be held at the Hyatt Regency Coral Gables at the Alhambra, 50 Alhambra Plaza,
Coral Gables, Florida 33134, on Monday, January 26, 1998 at 11:00 a.m., for the
following purposes:
(1) To elect four Class II directors to serve until 2001;
(2) To consider and vote upon approval of an amendment to the
Company's 1996 Incentive Compensation and Stock Award Plan to increase
the number of shares of the Company's Class A Common Stock and Class B
Common Stock (together, the "Common Stock") and the number of shares of
the Company's Noncumulative Convertible Preferred Stock, Series B (the
"Series B Preferred Stock") issuable under the Plan to 1,300,000 shares
of Common Stock and 375,000 shares of Series B Preferred Stock;
(3) To transact such other business as may properly come
before the Annual Meeting and any postponements or adjournments
thereof.
Pursuant to the Bylaws, the Company's Board of Directors has fixed the
close of business on December 18, 1997 as the record date (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. LIPSITZ
SECRETARY
Coral Gables, Florida
December 31, 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 MONDAY, JANUARY 26, 1998 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 (the "Board" or "Board of Directors") of proxies
for the Annual Meeting of Stockholders (the "Annual Meeting") to be held on
January 26, 1998, 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 December 31, 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 four
directors, as set forth below under "Election of Directors," and (ii) FOR the
approval of an amendment to the 1996 Incentive Compensation and Stock Award Plan
(the "1996 Plan") to increase the number of shares of the Company's Class A
Common Stock and Class B Common Stock (together, the "Common Stock") and the
number of shares of the Company's Noncumulative Convertible Preferred Stock,
Series B (the "Series B Preferred Stock") issuable under the 1996 Plan to
1,300,000 shares of Common Stock and 375,000 shares of Series B 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.
RECORD DATE; STOCKHOLDERS ENTITLED TO VOTE AT ANNUAL MEETING
Holders of record of the Class A Common Stock, the Class B Common
Stock, and the Series B Preferred Stock at the close of business on December 18,
1997 (the "Record Date"), are 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 Stock is entitled to one-tenth of one
vote, each share of Class B Common Stock is entitled to one vote and each share
of Series B Preferred Stock is entitled to two and one-half votes. As of the
Record Date, 13,853,001 shares of Class A Common Stock, 285,958 shares of Class
B Common Stock, and 203,818 shares of
<PAGE>
Series B Preferred stock were outstanding. As of the Record Date, there were
also outstanding 743,870 shares of 8% Noncumulative Convertible Preferred Stock,
Series 1993, and 697,117 shares of 9% Noncumulative Perpetual Preferred Stock,
neither of which have voting rights.
QUORUM; ADJOURNMENT; VOTE REQUIRED FOR APPROVAL
Holders of the Class A Common Stock, the Class B Common Stock, 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 Stock entitled to one-tenth vote; each share of Class B
Common Stock entitled to one vote; and each share of Series B Preferred Stock
entitled to two and one-half votes. The presence, in person or by proxy of
holders 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 Stock, Class B Common Stock, and Series B Preferred Stock, present in
person or by proxy, representing a majority of the votes entitled to be cast
constitute a quorum at the Annual Meeting for action on all the proposals.
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 total votes cast in person or
by proxy and entitled to vote on the proposal.
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, 1997, has been mailed to
stockholders with this Proxy Statement.
2
<PAGE>
PROPOSAL ONE: ELECTION OF DIRECTORS
The Board of Directors will consist of 11 members divided into three
classes, whose three-year terms of office expire in annual succession. At this
Annual Meeting, four directors have been nominated to serve in Class II, with
terms ending in 2001. 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. All four of the nominees are currently directors of the Company who
have been elected by the stockholders at previous annual meetings.
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
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
------------------------------------- --------
The persons nominated as Class II directors are:
LAWRENCE H. BLUM: Age 54 1984
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 53 1984
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, 1994 to present) of BankUnited;
Senior Managing Director (1996 to present) and
Managing Director (1973 to 1996) of Stuzin and
Camner, Professional Association, attorneys-at-law;
General Counsel to CSF Holdings, Inc. and its
subsidiary, Citizens Federal Bank, a federal
savings bank (1973 to 1996); 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).
JAMES A. DOUGHERTY: Age 47 1995
Director (December 1995 to present) and Chief
Operating Officer and Executive Vice President
(1994 to present) of the Company; Director, Chief
Operating Officer, and Executive Vice President of
BankUnited (1994 to present); Executive Vice
President of Retail Banking, Intercontinental Bank
(1989 to 1994).
(TABLE CONTINUED ON NEXT PAGE.)
3
<PAGE>
<TABLE>
<CAPTION>
TERM AS
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
------------------------------------- -------- --------
<S> <C> <C>
PATRICIA L. FROST: Age 58 1990
Director of the Company (1993 to present) and
BankUnited (1990 to 1997); Private investor in
Miami, Florida (1993 to present); Principal, West
Laboratory School, Coral Gables, Florida (1970 to
1993).
INFORMATION ABOUT THE CONTINUING MEMBERS OF THE BOARD OF DIRECTORS
The directors who are not currently standing for election are:
CURRENT CLASS I DIRECTORS:
- --------------------------
MARC D. JACOBSON: Age 55 1984 2000
Director (1993 to present) and Secretary (1993 to
1997) of the Company; Director (1984 to present)
and Secretary (1985 to 1996) of BankUnited; Vice
President of Head-Beckham Insurance Agency, Inc.
(1990 to present).
ANNE W. SOLLOWAY (1): Age 82 1985 2000
Director of the Company (1993 to present) and
BankUnited (1985 to present); Private investor in
Miami, Florida.
NEIL H. MESSINGER, M.D.: Age 59 1996 2000
Director of the Company 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 2000
Director (1996 to Present) and Secretary (1997 to
present) of the Company; Managing Director (1996 to
present) of Stuzin and Camner, Professional
Association, attorneys-at-law; General Counsel of
Jefferson National Bank (1993 to1996); Partner,
Stroock Stroock & Lavan, attorneys-at-law
(1991to1993).
CURRENT CLASS III DIRECTORS:
- ----------------------------
ALLEN M. BERNKRANT: Age 67 1985 1999
Director of the Company (1993 to present) and
BankUnited (1985 to present); Private investor in
Miami, Florida (1990 to present).
EARLINE G. FORD: Age 54 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).
</TABLE>
(TABLE CONTINUED ON NEXT PAGE.)
4
<PAGE>
<TABLE>
<CAPTION>
TERM AS
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
------------------------------------- -------- --------
<S> <C> <C>
BRUCE D. FRIESNER: Age 55 1996 1999
Director of the Company and BankUnited (1996 to
present); Director of Loan America Financial
Corporation, a national mortgage banking company
(1990 to 1994); Partner of F&G Associates, a
commercial real estate development company (1972 to
present).
</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 A. Dougherty act as the
Executive Committee of the Company's Board and as the Executive Committee of
BankUnited's Board. The 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. The Executive Committee also
selects nominees for election as directors. During the 1997 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 H. Messinger, serve as members of the Compensation Committee
of the Company and BankUnited. During fiscal 1997, the Compensation Committee
was responsible for recommending to the Board the salary, cash and stock
bonuses, and stock options for Alfred R. Camner (Chairman of the Board, Chief
Executive Officer and President), and for approving the salaries, stock and cash
bonuses and stock options for the other senior officers including the four other
most senior officers (James A. Dougherty, Chief Operating Officer and Executive
Vice President ; Earline G. Ford, Executive Vice President and Treasurer;
Lawrence H. Blum, Vice Chairman of the Board; and Samuel A. Milne, Executive
Vice President and Chief Financial Officer), and met 6 times.
Mr. Bernkrant, Mr. Jacobson and Bruce D. Friesner 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
reporting to generally accepted accounting principles. The Audit Committee had 5
formal meetings in fiscal 1997 and conferred on a regular basis to review
internal audit reports.
The Company's Board of Directors held 10 meetings and BankUnited's
Board of Directors held 12 meetings during fiscal 1997. Each continuing director
and each director nominated for reelection attended at least 75% of the
aggregate of all such Board meetings during the period in which the Director was
a member of the Board, and at least 75% of all meetings of the committees on
which he or she served.
5
<PAGE>
COMPENSATION OF DIRECTORS
For service on the Company's Board of Directors during the 1997 fiscal
year, the directors of the Company each received a fee per meeting that
consisted of shares of Class A Common Stock with a current market value of $100
and, prior to November 14, 1996, an option to acquire shares of Class A Common
Stock with a current market value of $250. In addition, for service on
BankUnited's Board of Directors, each director received a fee per meeting
consisting of $500 in cash, shares of Class A Common Stock with a current market
value of $400 and, prior to November 14, 1996, an option to acquire shares of
Class A Common stock with a current market value of $600. On November 14, 1996,
the Compensation Committee and the Board voted to change that portion of the fee
paid in the form of an option award. Beginning on that date, that portion of the
fee consisted of a grant to each director of an option to acquire 125 shares of
Class A Common Stock for each Board and committee meeting of BankUnited and an
option to acquire 30 shares of Class A Common Stock for each Board and committee
meeting of the Company. The portion of director and committee fees paid in cash
and stock remained the same. If any director of the Company or BankUnited missed
more than two meetings of the Board of Directors, he or she thereafter received
directors' fees only for those meetings which he or she actually attended.
For the fiscal 1998 year, the Board voted to change the fees paid to
directors for Board and committee meetings of the Company and BankUnited.
Directors who serve on both the Board of the Company and the Board of BankUnited
will each receive a fee, for each meeting of the Company's Board, of shares of
Class A Common Stock with a current market value of $120, and an option to
acquire 50 shares of Class A Common Stock, and a fee, for each meeting of
BankUnited's Board, of $600 in cash, shares of Class A Common Stock having a
current market value of $480, and an option to acquire 150 shares of Class A
Common Stock. Directors who serve only on the Company's Board will each receive
a fee per meeting of $600 in cash, shares of Class A Common Stock having a
current market value of $480, and an option to acquire 150 shares of Class A
Common Stock. The absentee policy was not changed.
During the 1997 fiscal year, non-employee directors who were 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 were also employees did not receive additional
compensation for their service on such committees.
6
<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
the four other most highly compensated executive officers of the Company and
BankUnited, each of 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, 1997 whose total annual salary and bonus for the
fiscal year exceeded $100,000 for services rendered to the Company and
BankUnited.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM COMPENSATION
---------------------------------
ANNUAL COMPENSATION AWARDS
-------------------------------------- ---------------------------------
RESTRICTED SECURITIES
NAME AND PRINCIPAL OTHER ANNUAL STOCK UNDERLYING ALL OTHER
POSITION YEAR SALARY($) BONUS($) COMPENSATION($) AWARDS OPTIONS/SARS(#)(A) COMPENSATION($)
------------------ ---- --------- -------- --------------- ---------- ------------------ ---------------
<S> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 1997 $306,808(B) $93,000(E) $60,930(F) -- 235,659 $62,741(G)
Chairman of the Board,
Chief Executive Officer 1996 $175,092(C) $54,039(E) (F) -- 65,986 $18,370(G)
and President of the
Company and BankUnited 1995 $153,750(D) $48,749(E) (F) -- 96,177 $10,748(G)
JAMES A. DOUGHERTY 1997 $133,275 $ 6,750(H) (F) $19,998(I) 47,659 $11,475(J)
Executive Vice President
and Chief Operating Officer 1996 $126,067 $12,200(H) (F) -- 13,451 $ 6,824(J)
of the Company and
BankUnited 1995 $118,794 $ 6,050 (F) -- 14,907 -
EARLINE G. FORD 1997 $115,298 $26,000(M) (F) -- 107,659 $11,443(N)
Executive Vice President
and Treasurer of 1996 $ 94,047(K) $23,350(M) (F) -- 13,486 $ 4,982(N)
BankUnited and the
Company; Corporate 1995 $ 77,250(L) $15,850(M) (F) -- 82,177 $ 956(N)
Secretary of BankUnited
CHARLES A. ARNETT* 1997 $118,500 $ 6,100(O) (F) $ 7,994(I) 12,500 $ 2,010(P)
Executive Vice President
of BankUnited 1996 $112,250 $ 3,300(O) (F) -- - -
1995 $ 48,333 -- (F) -- 4,000 --
SAMUEL A. MILNE 1997 $118,000 $ 6,000(Q) (F) $19,998(I) 39,500 $ 2,400(R)
Executive Vice President
and Chief Financial 1996 $105,000 $ 5,000(Q) (F) -- 12,500 --
Officer of the Company
and BankUnited 1995 $ 41,667 -- (F) -- 4,000 --
</TABLE>
- ----------
#--Number of shares granted.
$--Dollar amounts.
*--This individual ceased to be an executive officer of BankUnited effective
November 30, 1997.
(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 10,000 shares of Class B Common Stock with a fair market value
of $82,500 on the date of grant that were granted in lieu of cash
salary for a portion of the officer's annual compensation.
(FOOTNOTES CONTINUED ON NEXT PAGE.)
7
<PAGE>
(C) Includes 6,000 shares of Class B Common Stock 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.
(D) Includes 5,000 shares of Class B Common Stock 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.
(E) Reflects stock bonuses of 11,272 shares of Class B Common stock with a
fair market value on the date of grant of approximately $92,994, paid
in the 1997 fiscal year for services during the 1996 fiscal year; a
stock bonus of 7,466 shares of Class B Common Stock 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; and a stock bonus
of 8,477 shares of Class B Common Stock 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.
(F) Includes $60,325 paid in the 1997 fiscal year on behalf of Alfred R.
Camner for country club membership fees, and approximately $605 paid on
behalf of Alfred R. Camner during the 1997 fiscal year for meals and
other fees. For all other named executive officers and fiscal years,
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.
(G) Reflects, for the 1997 fiscal year, approximately $48,538 in insurance
premiums paid on insurance policies on Mr. Camner, and contributions by
the Company of approximately $2,997 and $11,206 to the 401(K) and
profit-sharing plans, respectively. Reflects, for the 1996 fiscal year,
insurance premiums and 401(k) and profit-sharing contributions of
approximately $8,361, $1,770 and $8,239, respectively, and for the 1995
fiscal year, insurance premiums and 401(k) contributions of
approximately $8,942 and $1,806, respectively.
(H) Reflects a stock bonus of 818 shares of Class A Common Stock with a
fair market value of approximately $6,749 on the date of grant, paid in
the 1997 fiscal year for services during the 1996 fiscal year; and a
stock bonus of 1,685 shares of Class A Common Stock 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.
(I) Reflects awards of 2,424, 969 and 2,424 shares of restricted Class A
Common Stock to James A. Dougherty, Charles A. Arnett and Samuel A.
Milne, respectively, which, as of the end of fiscal 1997, had fair
market values of $31,815; $12,718 and $31,815, respectively. Dividends
may be paid on the restricted stock.
(J) Includes, for the 1997 fiscal year, approximately $160 in life
insurance premiums paid by the Company as well as contributions by the
Company of approximately $2,000 and $9,315 to the 401(K) and
profit-sharing plans, respectively, on behalf of Mr. Dougherty.
Includes, for the 1996 fiscal year, profit-sharing contributions of
approximately $6,824.
(K) Includes 3,000 shares of Class B Common Stock 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.
(L) Includes 2,000 shares of Class B Common Stock with a fair market value
of $11,500 on the date of grant that were granted in lieu of salary for
a portion of the officer's annual compensation.
(M) Reflects a stock bonus of 3,151 shares of Class B Common Stock with a
fair market value on the date of grant of approximately $25,994, paid
in the 1997 fiscal year for services during the 1996 fiscal year; a
stock bonus of 3,225 shares of Class B Common Stock 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; and a stock bonus
of 2,755 shares of Class B Common Stock with a fair market value on the
date of grant of approximately $15,841, paid in the 1995 fiscal year
for services during the 1994 fiscal year.
8
<PAGE>
(N) Includes, for the 1997 fiscal year, approximately $138 in life
insurance premiums paid by the Company as well as contributions by the
Company of $2,634 and $8,671 to the 401(K) and profit-sharing plans,
respectively, on behalf of Mrs. Ford. Includes, for the 1996 fiscal
year, 401(K) and profit-sharing contributions of approximately $1,034
and $3,947, respectively; and for the 1995 fiscal year, 401 (K)
contributions of approximately $956.
(O) Reflects a cash bonus of $3,056 and a stock bonus of 369 shares of
Class A Common Stock with a fair market value of $3,044 on the date of
grant paid in the 1997 fiscal year for services during the 1996 fiscal
year; and a cash bonus of $1,652 and a stock bonus of 227 shares of
Class A Common Stock 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.
(P) Includes approximately $142 in life insurance premiums paid by the
Company as well as contributions by the Company of $1,868 to the 401(K)
plan on behalf of Mr. Arnett.
(Q) Reflects a stock bonus of 727 shares of Class A Common Stock with a
fair market value of approximately $5,998 on the date of grant, paid in
the 1997 fiscal year for services during the 1996 fiscal year; and a
cash bonus of $2,503 and a stock bonus of 345 shares of Class A Common
Stock 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.
(R) Includes approximately $142 in life insurance premiums paid by the
Company as well as contributions by the Company of $2,258 to the 401(K)
plan on behalf of Mr. Milne.
9
<PAGE>
COMPENSATION PURSUANT TO PLANS
1997 STOCK OPTION GRANTS. The following table provides details
regarding stock options granted to the named executive officers during the 1997
fiscal year. In addition, in accordance with the rules and regulations of the
Securities and Exchange Commission, the table describes the hypothetical gains
that would exist for the respective options based on assumed rates of annual
compound stock appreciation of 5% and 10% from the date of grant to the end of
the option term. These hypothetical gains are based on assumed rates of
appreciation and, therefore, the actual gains, if any, on stock option exercises
are dependent on the future performance of the Class A Common, overall stock
market conditions, and the named executive officer's continued employment with
the Company and BankUnited. As a result, the amounts reflected in this table may
not necessarily be achieved.
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
--------------------------------------------------------------- ----------------------------
NO. OF SECURITIES
UNDERLYING
OPTIONS/SARS PERCENT OF TOTAL
GRANTED(#)(A) OPTIONS/SARS EXERCISE
-------------------- GRANTED OR BASE
CLASS A CLASS B TO EMPLOYEES PRICE EXPIRATION
NAME COMMON COMMON IN FISCAL YEAR(B) ($/SHARE) DATE 5%($)(C) 10%($)(C)
---- ------- ------- ----------------- --------- ---------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 97,500(D) 15.90% $8.5170 11/14/06 $522,239 $1,323,456
324(E)(F) * $8.517 11/14/06 $ 1,735 $ 4,398
57,500(G) 9.38% $7.950 11/14/06 $287,483 $ 728,540
435(E)(F) * $9.5357 2/26/07 $ 2,609 $ 6,611
435(E)(F) * $9.0536 5/12/07 $ 2,477 $ 6,277
60,000(H) 9.78% $9.0536 5/12/07 $341,626 $ 865,746
19,000(H) 3.10% $9.5656 6/16/07 $114,299 $ 289,657
465(E)(F) * $10.7410 8/25/07 $ 3,141 $ 7,960
JAMES A. DOUGHERTY 324(E)(F) * $8.5170 11/14/06 $ 1,735 $ 4,398
12,000(G) 1.96% $7.2375 11/14/06 $ 54,620 $ 138,417
19,000(D) 3.10% $8.5170 11/14/06 $101,770 $ 257,904
435(E)(F) * $9.5357 2/26/07 $ 2,609 $ 6,611
12,000(H) 1.96% $9.0536 5/12/07 $ 68,325 $ 173,149
435(E)(F) * $9.0536 5/12/07 $ 2,477 $ 6,277
3,000(H) * $9.5656 6/16/07 $ 18,047 $ 45,735
465(E)(F) * $10.741 8/25/07 $ 3,141 $ 7,960
EARLINE G. FORD 324(E)(F) * $8.5170 11/14/06 $ 1,735 $ 4,398
45,500(G) 7.42% $7.2375 11/14/06 $207,099 $ 524,829
45,500(D) 7.42% $8.5170 11/14/06 $243,711 $ 617,613
435(E)(F) * $9.5357 2/26/07 $ 2,609 $ 6,611
435(E)(F) * $9.0536 5/12/07 $ 2,477 $ 6,277
12,000(H) 1.96% $9.0536 5/12/07 $ 68,325 $ 173,149
3,000(H) * $9.5656 6/16/07 $ 18,047 $ 45,735
465(E)(F) * $10.7410 8/25/07 $ 3,141 $ 7,960
CHARLES A. ARNETT** 7,500(D) 1.22% $8.5170 11/14/06 $ 40,172 $ 101,804
5,000(G) * $7.2375 11/14/06 $ 22,758 $ 57,674
SAMUEL A. MILNE 14,000(D) 2.28% $8.5170 11/14/06 $ 74,988 $ 190,035
9,500(G) 1.55% $7.2375 11/14/06 $ 43,240 $ 109,580
12,000(H) 1.96% $9.0536 5/12/07 $ 68,325 $ 173,149
4,000(H) * $9.5656 6/16/07 $ 24,063 $ 60,980
</TABLE>
- ----------
#--Number of shares underlying options granted.
$--Dollar amounts.
*--Less than 1%.
**--This individual ceased to be an executive officer of BankUnited effective
November 30, 1997.
(FOOTNOTES ON NEXT PAGE.)
10
<PAGE>
(A) All information provided relates to option grants. The Company does not
grant SARs.
(B) 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 (E). Also does not
include, in the total of options granted during fiscal 1997, options
which were granted to officers, directors and employees of Suncoast
Savings and Loan Association, FSA prior to fiscal year 1997, which were
converted on November 15, 1996 to options to purchase the Company's
Class A Common Stock, pursuant to the Agreement and Plan of Merger
between the Company and Suncoast.
(C) The potential realizable values of the options to acquire Class B
Common were calculated assuming that the underlying shares of Class B
Common Stock were converted, pursuant to the terms of that class, into
shares of Class A Common Stock on a one-for-one basis.
(D) These options were granted under the 1994 Incentive Stock Option Plan
(the "1994 Plan") and the 1996 Plan for 1997 fiscal year performance
and expire ten years from the date of grant. The options for Class A
Common Stock become exercisable for one-third of the total shares
covered by the option in each year of the three-year period beginning
on the date of grant.
(E) These options to acquire shares of Class A Common Stock were granted
under the 1996 Plan 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."
(F) These options were granted under the Company's 1996 Incentive
Compensation and Stock Award Plan (the "1996 Plan") for terms of 10
years and are exercisable immediately. The options terminate upon the
termination of the option holder's employment or service with the
Company or BankUnited, unless the option holder's option agreement or
resolutions of the Compensation Committee provide otherwise in the
event of termination by retirement, disability, death, change in
control or 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. The 1996 Plan provides that, unless otherwise
determined by the Company's Compensation Committee, the "fair market
value per share" is the average of the mean of the closing prices of
the stock as quoted on the Nasdaq National Market for each of the
immediately preceding five days on which such stock was traded, as
reported for such dates in the table contained in The Wall Street
Journal or an equivalent successor table. During the 1997 fiscal year,
the Compensation Committee determined that the fair market value per
share would be calculated as the average of the mean of the closing
prices of the stock as quoted on the Nasdaq National Market for each of
the immediately preceding thirty days on which such stock was traded,
as reported for such dates in the table contained in the Wall Street
Journal.
(G) These options were granted under the 1996 Plan for 1996 fiscal year
performance, and expire ten years from the date of grant. The options
for Class A Common Stock become exercisable for one-third of the total
shares covered by the option in each year of the three-year period
beginning on the date of grant.
(H) These options were granted under the 1996 Plan for extraordinary
services rendered during the 1997 fiscal year. Under the terms of the
grants, the options for Class A Common Stock shall become exercisable
for one-third of the total shares covered by the option in each year of
the three-year period beginning on the date of grant. All options
expire ten years from the date of grant.
1997 STOCK OPTION EXERCISES. The named executive officers did not
exercise any stock options during the 1997 fiscal year.
11
<PAGE>
EXECUTIVE EMPLOYMENT AGREEMENTS
The Board of Directors of the Company has approved individual
employment agreements between the Company and BankUnited with Alfred R. Camner
and Earline G. Ford (the "Employment Agreements"), and individual change of
control agreements between BankUnited and Samuel A. Milne and James A. Dougherty
(the "Change of Control Agreements"). Each Employment Agreement is for a term of
one year and is renewable for successive one-year terms unless terminated as
provided therein. Each Change of Control Agreement is for a term of one year
unless terminated by the parties or until the termination of the officer's
employment.
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 his employment were terminated after
a change in control by the Company by reason of the executive officer's death or
disability, or by the Company other than for cause, or by the executive officer
for good reason. The amount of the severance payments provided for in the
agreements is based on the executive officer's salary and bonuses. The
agreements also provide for the payment of certain accrued, earned or vested
amounts or benefits upon termination prior to a change in control, and for life,
health, accident, disability and medical insurance benefits, and other employee
welfare benefits, following termination.
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 requires incentive compensation as determined in
his agreement. Mr. Camner's agreement provides for 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 three 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 medical insurance for Mr. Camner and his family for five years
from the date of termination, or until Mr. Camner becomes covered by another
medical insurance plan or eligible for Medicare, whichever period is shorter,
continuation of Mr. Camner's group and supplemental life insurance for up to two
years, personal use at Company expense 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 Mr. Camner's employment, and the transfer to
Mr. Camner of two $1 million life insurance policies maintained by the Company
on his life.
The Change of Control Agreements do not affect BankUnited's employment
rights or obligations with respect to the executive officers prior to a change
in control (as defined in the agreements). Under the Change of Control
Agreements, the executive officer would be entitled to severance pay and
benefits if BankUnited terminated his employment for a reason other than
disability or cause (as defined in the agreement) or if the executive officer
terminated his employment for good reason (as defined in the agreement) during a
period following a change in control of the Company or BankUnited. The amount of
severance pay and benefits is based upon the executive officer's salary and
bonuses, and the agreements also provide for life, health, accident, disability
and medical insurance benefits, and for other employee welfare benefits,
following termination,
If the executive officers had been entitled to severance payments
pursuant to the Employment Agreements and Change of Control Agreements during
the 1997 fiscal year, the maximum severance payments would have been as follows:
Mr. Camner, $769,557; Mr. Milne, $304,666; Mrs. Ford, $383,387; and Mr.
Dougherty, $341,500. 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
12
<PAGE>
September 30, 1997 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 and/or the Board of
Directors. The Compensation Committee is responsible for submitting
recommendations to the Board for the salary, stock and cash bonuses and stock
options for Alfred R. Camner, and for approving the salaries, stock and cash
bonuses and stock options for the other senior officers including the four other
most senior officers of the Company (James A. Dougherty, Earline G. Ford,
Lawrence H. Blum and Samuel A. Milne).
The Company's overall executive compensation policies are intended to
establish levels of annual compensation that are consistent with 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 and stock bonus plans, are also
considered.
The compensation of the Company's executive officers includes three
components, as discussed below:
BASE SALARY: In setting executive salary levels for 1997, the Board and
the Compensation Committee considered the Company's performance in the 1996
fiscal year, in particular the growth of the Company's assets and deposits. The
Compensation Committee considered the benefits which the Company expected to
realize from the completion of the merger with Suncoast Savings and Loan
Association, FSA, in fiscal 1997: increased deposit market share, economies
associated with an in-market merger, acquisition of additional branch offices
and expansion of the Company's commercial real estate loan portfolio. The
Committee also considered the Company's plans to continue implementing an
aggressive growth strategy in fiscal 1997. Such plans included opening new
branches, raising capital through public and private financings, establishing
non-banking subsidiaries and pursuing in-market acquisitions of other financial
institutions.
The Board and the Compensation Committee further considered the
Company's prospects for 1997 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 attempted 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 carefully reviewed such guidelines and believe that 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: For the 1997 fiscal year, the Company provided two
types of annual incentives to its executive officers: cash bonuses, and stock
bonuses, which were recommended by the Compensation Committee and approved by
the Board of Directors. 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 Stock. In addition to the Company's
performance, the Board considers the officers' 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.
13
<PAGE>
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 determining the long-term incentives to be granted in 1997, 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
goals for net income and market value of the Class A Common Stock, and
considered the Company's plans to continue implementing an aggressive growth
strategy which included opening new branches, pursuing acquisitions of other
financial institutions, raising capital through public and private financings
and establishing non-banking subsidiaries. Further, the Board decided to
continue a vesting schedule for options granted to executive officers, other
than Alfred R. Camner and Earline G. Ford, in which each option becomes
exercisable for one-third of the total shares covered by the option in each year
of the three-year period beginning on the date of grant. The Board also
commenced the granting of shares of restricted stock, which vest over a period
of years from the date of grant. The Board believes that these vesting schedules
will encourage executive officers to make long-term commitments to the Company
and BankUnited. The Board believes that the market performance during the 1997
fiscal year of the Class A Common Stock demonstrates that the Company's
management policies have resulted in value created for the Company's
stockholders. The stock option grants have enabled the executive officers to
realize benefits from the appreciation in the price of the Class A Common Stock
while maintaining the relationship between executive compensation levels and the
interests of the Company's stockholders. Other factors that the Board considered
in granting options to a particular officer are position and tenure with the
Company (although no pre-determined weighting was given to each such factor).
CHIEF EXECUTIVE OFFICER'S 1997 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 Compensation Committee
recommended to the Board the Chief Executive Officer's salary, annual cash
bonus, stock bonus and the stock options, which were then approved 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 and BankUnited
to aggressively expand and to rapidly become the second largest publicly held
financial institution headquartered in South Florida. In particular, Mr. Camner
has implemented an aggressive growth strategy for the Company and BankUnited
which has entailed opening new branches, raising capital, establishing
non-banking subsidiaries 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
monitoring its compensation levels and intends, if 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
NEIL H. MESSINGER, M.D. ALFRED R. CAMNER
JAMES A. DOUGHERTY
EARLINE G. FORD
BRUCE D. FRIESNER
PATRICIA L. FROST
MARC D. JACOBSON
MARC LIPSITZ
NEIL H. 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 H. Messinger. Mr.
Jacobson served as Secretary of the Company and BankUnited until February, 1997.
Mr. Jacobson is a vice president of Head-Beckham Insurance Agency, Inc.
("Head-Beckham"). During the 1997 fiscal year, the Company paid Head-Beckham
Insurance Agency, Inc. ("Head-Beckham") the sum of approximately $373,000 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 $40,000 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. 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.
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 to 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.
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 member of the Boards of the
Company and BankUnited, is the Senior Managing Director of Stuzin and Camner.
Marc Lipsitz, Corporate Secretary and a member of the Board of the Company, is
the Managing Director of Stuzin and Camner. During the 1997 fiscal year, Stuzin
and Camner received approximately $2.9 million in legal fees from the Company
allocable to mortgage loan closings, foreclosures, litigation, corporate and
other matters. A substantial portion of the fees allocable to mortgage loan
closings are reimbursed by borrowers.
During the 1997 fiscal year BankUnited entered into a lease for
property located in a warehouse and commercial district adjacent to the Miami
International Airport, on which it intends to open a new branch. The property is
owned by a partnership, which is owned 25% by Alfred Camner, 25% by Charles B.
Stuzin, an owner of more than five percent of the Company's Class B Common Stock
and Preferred Stock, Series B, and the remaining 50% by Ruth Stuzin, Charles B.
Stuzin's mother. The annual rent for the property is approximately $126,000 for
a term of three years. The lease may be renewed for four additional three-year
terms. In addition, BankUnited will pay approximately $450,000 in construction
costs and termination of lease costs to unaffiliated parties. The lease terms,
including the early termination payment, are at market rates comparable to those
prevailing in the area for similar transactions involving non-affiliated
parties.
See "--Compensation Committee Interlocks and Insider Participation"
above for information regarding transactions with Head-Beckham.
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 Stock with the Nasdaq Stock
Market Index and the Dow Jones Savings & Loan Index. This graph assumes that
$100 was invested on September 30, 1992 in the Company's Class A Common Stock
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, THE NASDAQ STOCK MARKET (U.S.) INDEX
AND THE DOW JONES SAVINGS & LOAN ASSOCIATIONS INDEX
9/92 9/93 9/94 9/95 9/96 9/97
---- ---- ---- ---- ---- ----
Bankunited Finl Corp BKNUA 100 123 91 110 113 192
NASDAQ STOCK MARKET(U.S.) INAS 100 131 132 182 216 297
DJ SAVINGS & LOAN ASSOCs ISAL 100 130 130 169 203 398
- ----------
* $100 INVESTED ON 9/30/92 IN STOCK OR INDEX-
INCLUDING REINVESTMENT OF DIVIDENDS.
FISCAL YEAR ENDED 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 AMENDMENT TO THE 1996 INCENTIVE COMPENSATION AND STOCK
AWARD PLAN
The Board of Directors has approved, and is submitting to the
stockholders for approval, an amendment to the Company's 1996 Incentive
Compensation and Stock Award Plan (the "1996 Plan") to increase the number of
shares of Common Stock available for the grant of options, the number of shares
of Common Stock available for the grant of stock bonuses, stock awards,
restricted stock and restricted stock units, and the number of shares of Series
B Preferred Stock available for the grant of options, stock bonuses, stock
awards, restricted stock and restricted stock units (collectively "Awards") from
400,000, 150,000 and 100,000, respectively, to 875,000, 425,000 and 375,000,
respectively. Pursuant to the amendment, Section 5(a) of the Plan shall be
amended by (1) changing the numbers "400,000," "150,000" and "550,000" in the
first sentence of Section 5(a), to "875,000" "425,000" and "1,300,000,"
respectively, and (2) changing the number "100,000" in the second sentence of
Section 5(a), to "375,000."
As of December 1, 1997, the Board had approved and granted under the
1996 Plan, options to acquire 607,525 shares of Common Stock and 150,000 shares
of Series B Preferred Stock; restricted stock for 17,927 shares of Common Stock,
and 20,000 shares of Series B Preferred Stock; and 2,015 shares of stock as
partial payment for Board meeting fees. Of the Awards approved by the Board, the
grant of options for 75,530 shares of Common Stock and 70,000 shares of Series B
Preferred Stock are subject to approval of Proposal Two by the shareholders;
options for 453 shares of Common Stock have been exercised; options for 3,185
shares of Common Stock have expired or lapsed and awards of 1,696 shares of
restricted Common Stock have been forfeited.
The purpose of the 1996 Plan is to assist the Company and its
subsidiaries and affiliates in attracting, motivating, retaining and rewarding
high-quality executives and other employees, officers, directors and affiliates
by enabling such persons to acquire or increase a proprietary interest in the
Company in order to strengthen the mutuality of interest between such persons
and the Company's stockholders, and by providing such persons with annual and
long term performance incentives to expend their maximum efforts in the creation
of shareholder value. The Board of Directors believes that the purposes of the
1996 Plan and the best interests of the Company and BankUnited will be furthered
by increasing the aggregate number of shares for which Awards may be granted. A
substantial portion of the shares currently available for the granting of Awards
were used during fiscal 1997, and, based upon past practice and an increase in
the number of individuals eligible to participate in the 1996 Plan, the Board
estimates that, unless the proposed amendment is adopted, the number of shares
of Common Stock and Series B Preferred Stock remaining available under the 1996
Plan will be insufficient to meet the Company's compensation requirements in
fiscal 1998. Accordingly, the Board of Directors wishes to ensure the continued
availability of shares for which Awards may be granted to all eligible current
and future officers, directors and employees.
Although the Company believes it beneficial to increase the aggregate
number of shares for which options may be granted, the granting and exercise of
any such additional stock options may reduce future reportable book value per
share, in amounts that cannot be determined at this time. Further, the exercise
of such additional stock options would have a dilutive effect on the stock
ownership of persons not granted such options.
DESCRIPTION OF THE 1996 PLAN
The 1996 Plan was adopted by the Board of Directors on November 14,
1996 and approved by the shareholders at the 1997 Annual Meeting. The flexible
terms of the 1996 Plan provide for grants of options, a variety of other
stock-related awards, and annual incentive awards that will be settled in part
by the grant of stock. The 1996 Plan is intended to provide flexible terms to
permit the Compensation Committee (or the Board or other committee designated by
the Board, if it administers 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."
17
<PAGE>
The Board of Directors is requesting stockholder approval of amendment
to 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.
The following is a brief description of the material features of the
1996 Plan, as amended by Proposal Two. Such description is qualified in its
entirety by reference to the full text of the 1996 Plan.
SHARES SUBJECT TO THE 1996 PLAN. Under the 1996 Plan, the number of
shares of the Company's Common Stock for which options may be granted is 875,000
and the number of shares of Common Stock which can be issued in connection with
stock awards, stock bonuses, restricted stock and restricted stock units is
425,000. To the extent that the total number of shares of Common Stock does not
exceed 1,300,000 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, restricted stock and restricted stock units in lieu of cash or other
stock-based awards. Additionally, the number of shares of Series B Preferred
Stock for which Awards may be granted is 375,000.
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 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 December 18, 1997 the
last reported sale price of the Class A Common Stock, the only publicly traded
stock issuable under the 1996 Plan, was $14.875 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, officers, directors and employees 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 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.
18
<PAGE>
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 or 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 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 stock, upon achievement of pre-established 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 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 arrangements, subject to such terms as the Committee may specify.
OTHER TERMS OF AWARDS. Awards may be settled in 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, including 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
19
<PAGE>
disposition by the Company of all or substantially all of the Company's assets
(or any transaction having a similar effect).
NEW PLAN BENEFITS
The following table sets forth the awards authorized under the 1996
Plan which were granted during the 1997 fiscal year to the persons who were
named executives and specified groups of executive officers, directors and
employees:
<TABLE>
<CAPTION>
1996 EXECUTIVE INCENTIVE COMPENSATION AND STOCK AWARD PLAN
NAME AND POSITION NUMBER OF SHARES DOLLAR VALUE
----------------- ---------------- ------------
<S> <C> <C>
Alfred R. Camner 1,659 Class A Common (1) $ 15,840
Chairman, President and Chief 176,500 Class B Common (1) $ 1,555,370
Executive Officer
Earline G. Ford 1,659 Class A Common (1) $ 15,840
Executive Vice President and 60,500 Class B Common (1) $ 524,864
Treasurer
James A. Dougherty 16,659 Class A Common (1) $ 153,180
Executive Vice President and Chief 2,424 Class A Common (2) $ 20,645
Operating Officer
Samuel A. Milne 30,000 Class A Common (1) $ 266,144
Executive Vice President and Chief 2,424 Class A Common (2) $ 20,645
Financial Officer
Charles A. Arnett 7,500 Class A Common (1) $ 63,877
Executive Vice President of 969 Class A Common (2) $ 8,253
Bankunited
All current Executive Officers as a 77,621 Class A Common (1) $ 718,978
Group (8 in number)* 4,848 Class A Common (2) $ 41,290
237,000 Class B Common (1) $ 2,080,234
All current Non-executive Officer 12,765 Class A Common (1) $ 123,052
Directors as a group (6 in number)
All other current Employees 31,000 Class A Common (1) $ 265,100
(Including current officers who are 2,908 Class A Common (2) $ 24,767
not executive officers of the
Company, 7 in number)
</TABLE>
- ----------
(1) Options
(2) Restricted Stock
* Does not include Charles Arnett, who ceased to be an executive officer
of BankUnited effective November 30, 1997.
20
<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.
In the event that stockholders do not approve the amendment for the
1996 Plan, certain of the previously contemplated annual performance based stock
option awards under the 1996 Plan may 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 or (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
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 or other property.
21
<PAGE>
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 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 amend 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 IN FAVOR OF THE
AMENDMENT TO THE 1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN.
22
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 1,
1997 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 AND EXECUTIVE OFFICERS:
- ---------------------------------
Allen M. Bernkrant 23,560 11.56% 37,860 11.69% 90,434 *
P.O. Box 56-1122 (2)(3) (4)
Miami, FL 33256-1122
Lawrence H. Blum 23,560 11.56% 65,354 18.60% 219,958 1.57%
SunTrust Building - 10th Floor (2)(3)(5) (4)(6)
1 Southeast Third Avenue
Miami, FL 33131
Alfred R. Camner 241,018 68.12% 1,157,564 90.13% 1,334,922 8.88%
255 Alhambra Circle (6)(7) (2)(5)(6) (7)(8)
Coral Gables, FL 33134 (7)
James A. Dougherty -- -- -- -- 114,211 *
255 Alhambra Circle (8)
Coral Gables, FL 33134
Earline G. Ford 5,000 2.45% 455,152 64.75% 487,444 3.40%
255 Alhambra Circle (2)(3)(5) (4)
Coral Gables, FL 33134 (6)
Bruce D. Friesner -- -- -- -- 10,973 *
5431 North 36th Court
Hollywood, FL 33021
Patricia L. Frost -- -- -- -- 7,940 *
4400 Biscayne Boulevard (9)
Miami, Florida 33137
Clifford A. Hope -- -- -- -- 20,000 *
255 Alhambra Circle (10)
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 AND EXECUTIVE OFFICERS
- --------------------------------
Samuel A. Milne -- -- -- -- 91,496 *
255 Alhambra Circle (8)(10)
Coral Gables, FL 33134
Marc D. Jacobson 10,000 4.91% 43,540 13.22% 131,269 *
3050 Biscayne Boulevard (2)(3)(5) (4)
Fourth Floor
Miami, FL 33137
Marc Lipsitz -- -- -- -- 37,656 *
550 Biltmore Way (10)
Suite 700
Coral Gables, FL 33134
Neil Messinger, M.D. -- -- -- -- 7,446 *
10801 S.W. 93rd Court
Miami, FL 33176
Donald B. Putnam -- -- -- - 27,000 *
255 Alhambra Circle (10)
Coral Gables, FL 33134
Anne W. Solloway -- -- 31,856 10.16% 41,558 *
8124 S.W. 87th Terrace (3)(5) (8)
Miami, FL 33143
All current directors and 153,138 85.68% 1,665,796 94.95% 2,721,105 17.05%
executive officers of the (11) (11)
Company and BankUnited
as a group (14 persons)
</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>
OTHER 5% OWNERS:
- ----------------
Phillip Frost, M.D. and -- -- -- -- 992,888 7.16%
4400 Biscayne Boulevard (9)
Miami, Florida 33137
Charles B. Stuzin 16,560 8.12% 81,563 23.36% 226,773 1.62%
550 Biltmore Way (5)(12) (13)
Suite 700
Coral Gables, Florida 33134
James M. Stuzin 7,000 3.43% 60,090 20.27% 61,875 *
550 Biltmore Way (14) (15)
Suite 700
Coral Gables, Florida 33134
Harvey Miller 13,560 6.65% 20,354 6.65% 40,520 *
SunTrust Building - 10th Floor (16)
1 Southeast Third Avenue
Miami, Florida 33131
Barry Shulman 13,560 6.65% 20,284 6.62% 95,026 *
3999 N.E. 15th Avenue (16) (17)
Ft. Lauderdale, FL 33334
</TABLE>
- ----------
* Less than 1%.
(1) The nature of the reported beneficial ownership as of December 1, 1997
is unshared voting and investment power unless otherwise indicated in
the footnotes to this table. Class B Common Stock ownership of the
persons listed includes shares of Class B Common Stock that would be
issued upon the conversion of shares of Series B Preferred Stock owned
by such persons, the exercise of options granted to such persons to
acquire Class B Common Stock, and the exercise and conversion by such
persons of options granted to them to acquire Series B Preferred Stock.
Ownership by the persons listed of Class A Common Stock, which is the
Company's publicly traded class, includes shares of Class A Common
Stock that would be issued upon the conversion of shares of Series B
Preferred Stock, 8% Noncumulative Convertible Preferred Stock, Series
1993 ("Series 1993 Preferred Stock"), and Class B Common Stock
beneficially owned by them and the exercise of options to acquire
Series B Preferred Stock, Class A Common Stock and Class B Common Stock
granted to them. Each share of Series B Preferred Stock is convertible
into 1.4959 shares of Class B Common Stock. Each share of Class B
Common is Stock convertible into one share of Class A Common Stock.
Each share of Series 1993 Preferred Stock is convertible into one share
of Class A Common Stock, subject to adjustment upon the occurrence of
certain events. Alfred R. Camner is Anne W. Solloway's son.
(2) Includes 35,243; 35,243; 136,153; 7,479 and 14,959 shares of Class B
Common Stock that would be issued upon the conversion of shares of
Series B Preferred Stock held individually by each of Allen M.
Bernkrant, Lawrence H. Blum, Alfred R. Camner, Earline G. Ford and Marc
D. Jacobson, respectively.
25
<PAGE>
(3) Includes 2,617; 30,111; 409,501; 28,511 and 27,638 shares of Class B
Common Stock that may be acquired individually by each of Allen M.
Bernkrant, Lawrence H. Blum, Earline G. Ford, Marc D. Jacobson and Anne
W. Solloway, respectively, upon the exercise of options under the
Company's option plans.
(4) Includes 11,030; 43,330; 10,365 and 5,361 shares of Class A Common
Stock that may be acquired by each of Allen M. Bernkrant, Lawrence H.
Blum, Earline G. Ford, Marc D. Jacobson and Patricia Frost,
respectively, through options granted under the Company's option plans.
(5) Includes 25,894 shares of Class B Common Stock that may be acquired by
each of the persons indicated upon the exercise of options granted to
the original organizers of BankUnited.
(6) Includes 3,000; 5,424; 5,424 and 2,800 shares of restricted stock held
by Earline Ford, Samuel Milne, James Dougherty and Lawrence Blum,
respectively, which vest over a 3-year period from the date of grant.
Also includes 20,000 shares of restricted Series B Preferred Stock
which were granted to Alfred Camner and which vest over a 3-year period
from the date of grant.
(7) Includes 544,206 shares of Class B Common Stock that may be acquired by
Alfred R. Camner through currently exercisable options under the
Company's option plans, as well as 93,676 shares of Class B Common
Stock which would be received upon the exercise of options donated by
Mr. Camner as a bona fide gift to the Camner Family Foundation, Inc., a
charitable non-profit foundation under Section 501(a) of the Internal
Revenue Code. Also includes, pursuant to a durable power of attorney
given by Mrs. Solloway to Mr. Camner, 4,218 shares of Class B Common
Stock owned by her, 25,894 shares of Class B Common Stock that may be
acquired by her through options described in Note (5) above, and 1,744
shares of Class B Common Stock that may be acquired by her through
currently exercisable options under the Company's option plans. Also
includes 1,914 shares of Class B Common Stock owned by Mr. Camner's
wife, for which he has been granted a proxy. Also includes shares of
Class B Common Stock that may be acquired upon the conversion of 91,018
shares of Series B Preferred Stock, and upon the exercise and
conversion of options to purchase 150,000 shares of Series B Preferred
Stock.
(8) Includes 6,565 and 6,564 shares of Class A Common Stock that may be
acquired by Alfred R. Camner and Anne W. Solloway, respectively,
through currently exercisable options under the Company's option plans.
Mr. Camner also has beneficial ownership of Mrs. Solloway's shares
through a durable family power of attorney.
(9) The number of shares beneficially owned by Patricia Frost does not
include shares beneficially owned by Phillip Frost, Mrs. Frost's
husband, and a beneficial owner of more than 5% of the Class A Common
Stock of the Company. The number of shares beneficially owned by
Phillip Frost does not include shares beneficially owned by Patricia
Frost.
(10) Includes 2,779; 33,350; 3,107; 85,000; 22,000 and 20,000 shares of
Class A Common Stock that may be acquired by Bruce Friesner, Marc
Lipsitz, Neil Messinger, Samuel Milne, Donald Putnam, and Clifford Hope
respectively, upon the exercise of options granted under the Company's
option plans.
(11) Includes an aggregate of 150,000 shares of Series B Preferred Stock,
1,014,946 shares of Class B Common Stock and 432,227 shares of Class A
Common Stock that may be acquired upon the exercise of options, as
described in this Note and in Notes (3) through (9) above.
(12) Includes 24,772 shares of Class B Common Stock that would be issued
upon the conversion of the shares of Series B Preferred Stock held by
Mr. Stuzin, 6,843 shares of Class B Common Stock held by a family
partnership of which Mr. Stuzin is a general partner, and 38,394 shares
of Class B Common Stock that may be acquired by Mr. Stuzin through
currently exercisable options under the Company's option plan.
26
<PAGE>
(13) Includes 36,000 shares of Class A Common Stock that may be acquired
upon the exercise of options to purchase Class A Common Stock.
(14) Reflects shares of Series B Preferred Stock held as trustee of a trust
for the benefit of certain family members.
(15) Includes 10,471 shares of Class B Common Stock that would be issued
upon the conversion of 7,000 shares of Series B Preferred Stock and
49,619 shares of Class B Common Stock held as trustee of a family
trust, and 6,843 shares of Class B Common Stock held as general partner
of a family partnership.
(16) Includes 20,284 shares of Class B Common Stock that would be issued
upon the conversion of 13,560 shares of Series B Preferred Stock held
by each of Barry Shulman and Harvey Miller.
(17) Includes 12,500 shares of Class A Common Stock that would be issued
upon the conversion of 12,500 shares of Series 1993 Preferred Stock
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, 1997, 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. A Form 4 report filed for Alfred R. Camner, a director and
executive officer of the Company, for the month of November,
1996, omitted to report the acquisition by Mr. Camner of 2,200
shares of the Company's 8% Noncumulative Convertible Preferred
Stock, Series 1996. The shares were acquired in exchange for
shares of Suncoast Preferred Stock, Series A on a 1 to 1
basis, pursuant to the Agreement and Plan of Merger dated July
15, 1996 between the Company and Suncoast Savings and Loan
Association, FSA.
2. A March 1997 Form 4 report for Albert J. Finch, a former
director of the Company who served during the 1997 fiscal
year, was received one day late by the Securities and Exchange
Commission Processing Section.
3. A March 1997 Form 4 report for Elia J. Giusti, a former
director of the Company who served during the 1997 fiscal
year, was received one day late by the Securities and Exchange
Commission Processing Section.
4. An August 1997 Form 4 report for Neil Messinger, a director of
the Company, was received one day late by the Securities and
Exchange Commission Processing Section.
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 1998 fiscal year. Price Waterhouse LLP audited the
Company's financial statements for the 1997 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
1999 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 September 25, 1998 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
December 31, 1997
28
<PAGE>
APPENDIX A TO ELECTRONIC FILING OF PROXY STATEMENT
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 affiliates 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 such entity is controlled
by or under common control with the Company.
(b) "Award" means any Option, Restricted Stock, Restricted
Stock Units, 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 designated
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.
(h) "Committee" means the Compensation Committee of the Board,
or such other Board committee as may be designated by the Board to administer
the Plan; provided, however, that Committee action shall be taken by act of such
members specified in, and otherwise in accordance with, Section 3(b). 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 a "non-employee director" within the meaning of Rule
16b-3(b)(3), but such members are not required to so qualify at the time of
appointment or during their term of service on the Committee.
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(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 Committee. Unless otherwise determined by the Committee, the
Fair Market Value of Stock as of any given date shall mean the per share value
of Stock as determined by using the average of the mean of the closing prices of
such Stock as quoted on the NASDAQ system on each of the immediately preceding
five days on which the stock was traded, as reported for such dates 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) "Restricted Stock Unit" means a right, granted to a
Participant under Section 6(d), to receive Stock or cash at the end of a
specified deferral period.
(r) "Plan" means this 1996 Incentive Compensation and Stock
Award Plan.
(s) "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.
(t) "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 Preferred Stock, Series B ("Preferred Stock") of the
Company or such other securities as may be substituted or resubstituted therefor
pursuant to Section 5.
(u) "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 corporations in the chain.
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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;
(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.
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(b) MANNER OF EXERCISE OF COMMITTEE AUTHORITY. At any time
that a member of the Committee is not a Non-Employee Director as defined in Rule
16b-3, any action of the Committee relating to an Award granted or to be granted
to a Participant who is then subject to Section 16 of the Exchange Act in
respect of the Company may be taken either (i) by a subcommittee, designated by
the Committee, composed solely of two or more members who are Non-Employee
Directors, or (ii) by the Committee but with each such member who is not a
Non-Employee Director abstaining or recusing himself or herself from such
action; PROVIDED, HOWEVER, that, upon such abstention or recusal, the Committee
remains composed solely of two or more members who are Non-Employee Directors.
Such action, authorized by such a subcommittee or by the Committee upon the
abstention or recusal of such non-qualifying member(s), shall be the action of
the Committee for purposes of the Plan. 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, and in the case of a Participant then subject to Section 16 of
the Exchange Act with respect to the Company, to the extent that such delegation
will not result in the loss of an exemption under Rule 16b-3(d)(1).
(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.
4. ELIGIBILITY.
(a) GENERALLY. Executive officers, officers, directors and
employees 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.
(b) ANNUAL PER-PERSON LIMITATION. Subject to adjustment as
hereinafter provided in Sections 5(a) and 5(d), in each calendar year during any
part of which the Plan is in effect, a Participant may be granted Stock Options
relating to no more than 95,000 shares of Stock.
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 875,000, and the number of shares of Common Stock which
may be issued in connection with Stock Bonuses, Stock Awards, Restricted Stock
and Restricted Stock Units in lieu of cash or other Stock-Based Awards shall be
425,000, provided however that to the extent that the total number of shares of
Common Stock does not exceed 1,300,000 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, Restricted Stock and Restricted Stock Units in lieu
of cash or other Stock-Based Awards. Additionally, subject to adjustment as
hereinafter provided the number of shares of Noncumulative Convertible Preferred
Stock, Series B for which Options may be granted and which may be
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issued in connection with Stock Bonuses, Stock Awards, Restricted Stock and
Restricted Stock Units in lieu of cash or other Stock-Based Awards shall be
375,000.
(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, (iii) the per-person limit,
number and kind of shares subject to Options which may be granted pursuant to
Section 4(b) and (iv) the exercise price, grant price, or purchase price
relating to any 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. Unless otherwise required by
applicable law, 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.
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(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 or Restricted Stock Units ("RSU") to Participants on the
following terms and conditions:
(i) ISSUANCE AND RESTRICTIONS. Restricted Stock
and RSU shall be subject to such restrictions on transferability and other
restrictions, if any, as the committee may impose at the date 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 or RSU, a Participant granted
Restricted Stock or RSU 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 or RSU, and any accrued but
unpaid dividend(s) 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 or RSU
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 or RSU
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. Upon expiration of
the deferral period specified for RSU by the Committee (or, if permitted by the
Committee, as elected by the participant) the stock underlying such RSU shall be
delivered.
(iv) DIVIDENDS. Dividends paid on Restricted Stock or
RSU 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, RSU,
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 or RSU with respect to which such Stock or other property has
been distributed.
(d) 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.
(e) 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
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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(f) 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 and 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.
(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 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).
(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, except 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. The Committee may
provide that, in the event of a "Change in Control," as defined in this Section,
or at some specified time period after such Change in Control:
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(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.; provided, however, that, the Board may
determine, by entry of a resolution prior to the occurrence of a Change
in Control, that a Change in Control will not result in some or all of
the consequences specified in (i) or (ii) or will not result in such
consequences for specified Participants.
(b) "CHANGE IN CONTROL" DEFINED. For purposes of the Plan, a
"Change in Control" shall have occurred if:
(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
Company shall not be obligated to take any action under the Plan and any Award
Agreement, unless and until it is satisfied that all applicable federal and
state laws, rules and regulations, and approvals by any regulatory or
governmental agency have been complied with or obtained. 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
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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 shall be transferable, including but not limited to permitting
transfers to a Participant's immediate family members (I.E., spouse, children,
or grandchildren, as well as the Participant), to trusts for the benefit of such
family members 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 Participant the right
to be retained in the employ or service 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
Participant's employment or services 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 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 to the
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.
A-9
<PAGE>
(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, the Plan will terminate at such time as the Company has no further
obligations with respect to any Award granted under the Plan; provided, however,
that ISOs may not be granted later than 10 years after the Effective Date..
(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-10
<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 January 26, 1998 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: Class II For Against
Lawrence H. Blum [_] [_]
Alfred R. Camner
James A. Dougherty
Patricia L. Frost
To withhold authority to vote for any Nominee, write
full name of nominee on The line below:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
2. Approval of Amendment to For Against Abstain Please mark, sign, date and
1996 Incentive Compensation [_] [_] [_] return this Proxy card promptly,
and Stock Award Plan 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
</TABLE>
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 January 26, 1998 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: Class II For Against
Lawrence H. Blum [_] [_]
Alfred R. Camner
James A. Dougherty
Patricia L. Frost
To withhold authority to vote for any
Nominee, write full name of nominee on
The line below:________________________
_______________________________________
_______________________________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
2. Approval of Amendment to For Against Abstain Please mark, sign, date and
1996 Incentive Compensation [_] [_] [_] return this Proxy card promptly,
and Stock Award Plan 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
</TABLE>
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 January 26, 1998 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: Class II For Against
Lawrence H. Blum [_] [_]
Alfred R. Camner
James A. Dougherty
Patricia L. Frost
To withhold authority to vote for any
Nominee, write full name of nominee on
The line below:________________________
_______________________________________
_______________________________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
2. Approval of Amendment to For Against Abstain Please mark, sign, date and
1996 Incentive Compensation [ ] [_] [_] return this Proxy card promptly,
and Stock Award Plan 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
</TABLE>
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
