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 /section/ 240.14a-11(c) or
/section/ 240.14a-12
BANKUNITED FINANCIAL CORPORATION
--------------------------------
(Name of Registrant as Specified in Its Articles of Incorporation)
Marsha D. Bilzin, Esq.
Camner, Lipsitz and Poller, 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 logo]
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
FOR THURSDAY, JANUARY 28, 1999
NOTICE IS HEREBY GIVEN that the 1999 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 Thursday, January 28, 1999 at 11:00 a.m., for
the following purposes:
(1) To elect one Class II director to serve until 2001, and
three Class III directors to serve until 2002;
(2) To consider and vote upon approval of an amendment to the
Company's 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 by 750,000 shares of Common Stock to 2,050,000 shares of
Common Stock and by 275,000 shares of Series B Preferred Stock to
650,000 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 21, 1998 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 LIPSITZ
SECRETARY
Coral Gables, Florida
December 29, 1998
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
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD AT 11:00 A.M. ON THURSDAY, JANUARY 28, 1999
AT THE HYATT REGENCY CORAL GABLES AT THE ALHAMBRA, 50 ALHAMBRA PLAZA
CORAL GABLES, FLORIDA 33134
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 28, 1999, 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 29, 1998.
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, by
750,000 shares of Common Stock to 2,050,000 shares of Common Stock and by
275,000 shares of Series B Preferred Stock to 650,000 shares of Series B
Preferred Stock. The Company has not received notice of any stockholders'
proposals to be presented at the Annual Meeting, prior to the deadline for
submission of such proposals which was indicated in the Company's Proxy
Statement for the 1998 Annual Meeting, and 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. If other matters are properly
presented, it is the intention of the persons designated as proxies on the
enclosed proxy card to vote as proxies with respect to such matters in
accordance with their judgment.
REVOCATION OF PROXIES
A proxy may be revoked at any time prior to the use of such proxy in
voting. Any stockholder may revoke a proxy delivered pursuant to this
solicitation by delivery of written notice to the Secretary of the Company, by
submission of a later-dated proxy card, or by voting in person at the Annual
Meeting.
<PAGE>
RECORD DATE; STOCKHOLDERS ENTITLED TO VOTE AT ANNUAL MEETING
Holders of 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 21,
1998 (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, 17,829,675 shares of Class A Common Stock, 376,392 shares of Class
B Common Stock, and 229,580 shares of Series B Preferred Stock were outstanding.
The number of shares of Class A Common Stock outstanding includes shares which
may be issued in connection with recent mergers, in exchange for outstanding
stock certificates of the acquired companies. Pursuant to the terms of the
merger agreements , the holders of such stock certificates are entitled to vote
at the annual meeting. As of the Record Date, there were also outstanding
697,117 shares of 9% Noncumulative Perpetual Preferred Stock, which have no
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 solicitation of proxies is being made by the Company, and 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, 1998, has been mailed to
stockholders with this Proxy Statement.
2
<PAGE>
PROPOSAL ONE: ELECTION OF DIRECTORS
The Board of Directors will consist of 10 members divided into three
classes, whose three-year terms of office expire in annual succession. At this
Annual Meeting, one director has been nominated to serve in Class II, with a
term ending in 2001, and three directors have been nominated to serve in Class
III, with terms ending in 2002. 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 a vote
against any director or that 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. The three Class III nominees are currently directors of the Company
who have been elected by the stockholders at previous annual meetings. The Class
II nominee was elected by the Board effective December 1, 1998 to replace former
director James A. Dougherty, who resigned.
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.
INFORMATION ABOUT THE NOMINEES
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
- ----------------------------------------------------------- -----------
The person nominated as a Class II director is:
MEHDI GHOMESHI: Age 42 1998
Director, President and Chief Operating Officer of the Company
and BankUnited (December 1998 to present); Market President of
NationsBank, South Florida (January 1998 to December 1998);
President and Chief Operating Officer of Barnett Bank, South
Florida (1996 to 1998); Director of Special Assets and Risk
Management, Barnett Bank, Inc. (1995 to 1996); Executive Vice
President, Commercial Real Estate, Barnett Bank of South
Florida (1993 to 1995).
The persons nominated as Class III directors are:
ALLEN M. BERNKRANT: Age 68 1985
Director of the Company (1993 to present) and BankUnited (1985
to present); Private investor in Miami, Florida (1990 to
present).
EARLINE G. FORD: Age 55 1984
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), Corporate Secretary (1996 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).
3
<PAGE>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
- ---------------------------------------------------------- ----------
BRUCE D. FRIESNER: Age 56 1996
Director of the Company and BankUnited (1996 to present);
Principal of F&G Associates, a commercial real estate
development company (1972 to present); Director of Loan
America Financial Corporation, a national mortgage banking
company (1990 to 1994).
INFORMATION ABOUT THE CONTINUING MEMBERS OF THE BOARD OF DIRECTORS
TERM AS
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
- ------------------------------------------------------- ----------- --------
The directors who are not currently standing for
election are:
CURRENT CLASS I DIRECTORS:
MARC D. JACOBSON: Age 56 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 83 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 60 1996 2000
Director of the Company and BankUnited (1996
to present); Radiologist; President (1986 to
present) of Radiological Associates,
Professional Association; Chairman (1986 to
present) of Imaging Services of Baptist
Hospital.
MARC LIPSITZ: Age 57 1996 2000
Director (1996 to present) and Secretary
(1997 to present) of the Company; Managing
Director (1996 to present) of Camner,
Lipsitz and Poller, Professional
Association, attorneys-at-law, and its
predecessor, Stuzin and Camner, Professional
Association, attorneys-at-law; General
Counsel of Jefferson National Bank (1993
to 1996); Partner, Stroock Stroock & Lavan,
attorneys-at-law (1991 to 1993).
(TABLE CONTINUED ON NEXT PAGE.
4
<PAGE>
TERM AS
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
- ------------------------------------------------------- ----------- --------
CURRENT CLASS II DIRECTORS:
LAWRENCE H. BLUM: Age 55 1984 2001
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 54 1984 2001
Director, Chairman of the Board and Chief
Executive Officer (1993 to present) and
President (1993 to 1998) of the Company;
Director, Chairman of the Board and Chief
Executive Officer (1984 to present) and
President (1984 to 1993, 1994 to 1998) of
BankUnited; Senior Managing Director (1996
to present) of Camner, Lipsitz and Poller,
Professional Association, attorneys-at-law,
and its predecessor, Stuzin and Camner,
Professional Association, attorneys-at-law;
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).
- -----------------
(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
During the 1998 fiscal year, Alfred R. Camner, Earline G. Ford and
James A. Dougherty acted 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, and sets salaries and grants stock options for employees other than
executive officers. During the 1998 fiscal year, the Company's Executive
Committee met as required and BankUnited's Executive Committee met approximately
twice a week. Effective December 1, 1998, Mehdi Ghomeshi joined the Company and
BankUnited as President and Chief Operating Officer, and was appointed by the
Company's Board and BankUnited's Board to replace James A. Dougherty on the
Executive Committee.
5
<PAGE>
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 1998, the Compensation Committee
was responsible for recommending to the Board the salary, cash and stock
bonuses, and stock options for Alfred R. Camner, who served as Chairman of the
Board, Chief Executive Officer and President during the 1998 fiscal year, and
for approving the salaries, stock and cash bonuses and stock options for the
other senior officers including the four other most senior officers for the 1998
fiscal year (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 Clifford A. Hope, Executive Vice President
and Chief Financial Officer). Salaries and stock options for employees other
than executive officers were determined by the Executive Committee under
authority granted by the Board in February 1998. During fiscal 1998, the
Compensation Committee met 11 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 1998 and conferred on a regular basis to review
internal audit reports.
The Company's Board of Directors and BankUnited's Board of Directors
each held 12 meetings during fiscal 1998. Each continuing director and each
current director nominated for reelection attended at least 75% of all meetings
of the Company's Board and at least 75% of all meetings of BankUnited's Board
during the period in which the director was a member. Each director except Neil
Messinger attended at least 75% of the total number of meetings held by all
committees on which he or she served.
COMPENSATION OF DIRECTORS
Each director who served on the Company's Board or BankUnited's Board
during the 1998 fiscal year received a fee for each Board meeting. Except for
the month of October 1997, directors who served on both the Company's Board and
BankUnited's Board received a fee per meeting of the Company's Board which
consisted of Class A Common Stock with a market value of $120 and an option to
buy 50 shares of Class A Common Stock. The fee per meeting of BankUnited's Board
consisted of $600 in cash, Class A Common Stock with a market value of $480 and
an option to buy 150 shares of Class A Common Stock. Each director who served
only on the Company's Board received a fee per meeting of $600 in cash, Class A
Common Stock with a market value of $480, and an option to buy 150 shares of
Class A Common Stock.
For the month of October 1997, directors who served on the Company's
Board received a fee per meeting consisting of Class A Common Stock with a
market value of $100 and an option to buy 30 shares of Class A Common Stock.
Directors who served on BankUnited's Board received a fee per meeting consisting
of $500 in cash, Class A Common Stock with a market value of $400 and an option
to buy 125 shares of Class A Common Stock.
If any director of the Company or BankUnited missed more than two Board
meetings during the 1998 fiscal year, that director thereafter received fees
only for those meetings which he or she attended.
During the 1998 fiscal year, non-employee directors who were members of
a Board committee or of BankUnited's Community Reinvestment Act Committee
received an additional fee, equal to the fee per meeting of BankUnited's Board,
for each committee meeting attended.
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 during the 1998 fiscal year, 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, 1998 whose total
annual salary and bonus for the fiscal year exceeded $100,000 for services
rendered to the Company and BankUnited.
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
LONG TERM COMPENSATION
-------------------------------------
ANNUAL COMPENSATION AWARDS
------------------------------------------ -------------------------------------
OTHER SECURITIES
NAME AND PRINCIPAL ANNUAL RESTRICTED STOCK UNDERLYING ALL OTHER
POSITION YEAR SALARY($) BONUS($) COMPENSATION($) AWARDS OPTIONS/SARS(#)(A) COMPENSATION($)
- ----------------------- ------- ------------ -------- --------------- ---------------- ------------------ --------------
<S> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 1998 $ 294,583 $15,000(C) $ 10,217(D) $ 396,400(E) 337,361 $ 65,327(F)
Chairman of the Board,
Chief Executive Officer 1997 $ 306,808(B) $93,000(C) $ 60,930(D) -- 235,659 $ 62,741(F)
and President* of the
Company and BankUnited 1996 $ 175,092(B) $54,039(C) (G) -- 65,986 $ 18,370(F)
JAMES A. DOUGHERTY 1998 $ 154,938 $ 7,838(H) (G) $ 39,750(I) 38,210 $ 16,042(J)
Executive Vice President
and Chief Operating
Officer* of the 199 $ 133,275 $ 6,750(H) (G) $ 19,998(I) 47,659 $ 11,475(J)
Company and BankUnited 1996 $ 126,067 $12,200(H) (G) -- 13,451 $ 6,824(J)
EARLINE G. FORD 1998 $ 140,169 $ 7,100(K) (G) $ 39,750(L) 56,883 $ 19,553(M)
Executive Vice President
and Treasurer of 1997 $ 115,298 $26,000(K) (G) -- 107,659 $ 11,443(M)
BankUnited and the
Company; Corporate 1996 $ 94,047(N) $23,350(K) (G) -- 13,486 $ 4,982(M)
Secretary of BankUnited
CLIFFORD A. HOPE** 1998 $ 118,333 $ 2,750(O) (G) -- 37,500 $ 191(P)
Executive Vice President
and Chief Financial 1997 $ 7,122 $ -- (G) -- 10,000 --
Officer of the Company
and BankUnited 1996 $ -- $ -- -- -- -- --
DONALD PUTNAM 1998 $ 118,333 $ 5,500(Q) (G) -- 12,000 $ 4,224(R)
Executive Vice President
of the Company and 1997 $ 91,667 $ -- (G) -- 10,000 $ 108(R)
and BankUnited
1996 $ -- $ -- -- -- -- --
__________
#--Number of shares granted.
$--Dollar amounts.
*--Until December 1, 1998.
**-This individual ceased to be an executive officer of the Company and BankUnited effective December 16, 1998.
</TABLE>
(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. Also includes
options which were repriced and considered granted during the 1998
fiscal year. See "Election of Directors--Compensation of Directors" and
"Compensation Pursuant to Plans-Option/SAR Grants in Last Fiscal Year."
(FOOTNOTES CONTINUED ON NEXT PAGE.)
7
<PAGE>
(B) Includes for the 1997 fiscal year, 10,000 shares of Class B Common
Stock with a fair market value of approximately $82,500 on the date of
grant that were granted in lieu of cash salary for a portion of the
officer's annual compensation; and for the 1996 fiscal year, 6,000
shares of Class B Common Stock with a fair market value of
approximately $43,425 on the date of grant that were granted in lieu of
cash salary for a portion of the officer's annual compensation.
(C) Reflects for the 1998 fiscal year, a stock bonus of 762 shares of
Series B Preferred Stock with a fair market value on the date of grant
of approximately $15,000, paid in the 1998 fiscal year for services
during the 1997 fiscal year; for the 1997 fiscal year, a stock bonus 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; and for 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.
(D) Includes for the 1998 fiscal year, $10,217 in dividends paid on
restricted Series B Preferred Stock. Includes for the 1997 fiscal year,
$60,325 paid on behalf of Alfred R. Camner for country club membership
fees.
(E) Reflects 20,000 shares of restricted Series B Preferred Stock granted
in lieu of cash salary for a portion of Mr. Camner's annual
compensation, which had a fair market value of approximately $329,098
as of the end of fiscal 1998. Dividends may be paid on the restricted
stock.
(F) Reflects for the 1998 fiscal year, approximately $45,860 in insurance
premiums paid on insurance policies on Mr. Camner's life, contributions
by the Company of approximately $5,795 and $6,572 to the 401(K) and
profit-sharing plans, respectively, and $7,100 in cash director fees
for service as a member of the Board of the Company and BankUnited; for
the 1997 fiscal year, insurance premiums and 401(k) and profit-sharing
contributions of approximately $48,538, $2,997 and $11,206,
respectively; and, for the 1996 fiscal year, insurance premiums and
401(k)and profit-sharing contributions of approximately $8,361, $1,770
and $8,239, respectively.
(G) The aggregate amount of such compensation is less than 10% of the total
of the named executive officer's annual salary and bonus for the fiscal
year.
(H) Reflects for the 1998 fiscal year, a stock bonus of 597 shares of Class
A Common Stock with a fair market value of approximately $7,838 on the
date of grant, paid in the 1998 fiscal year for services during the
1997 fiscal year; for the 1997 fiscal year, 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 for the 1998 fiscal year, a stock
bonus of 1,685 shares of Class A Common Stock with a fair market value
of approximately $12,195 on the date of grant, paid in the 1996 fiscal
year for services during the 1995 fiscal year.
(I) Reflects for the 1998 fiscal year, an award of 3,000 shares of
restricted Class A Common Stock granted in lieu of cash salary for a
portion of Mr. Dougherty's annual compensation, and for the 1997 fiscal
year, an award of 2,424 shares of restricted Class A Common Stock. As
of the end of fiscal 1998, Mr. Dougherty's aggregate restricted stock
holdings had a fair market value of approximately $59,664. Dividends
may be paid on the restricted stock.
(FOOTNOTES CONTINUED ON NEXT PAGE.)
8
<PAGE>
(J) Includes for the 1998 fiscal year approximately $252 in life insurance
premiums paid by the Company, contributions by the Company of
approximately $2,118 and $6,572 to the 401(k) and profit sharing plans,
respectively, and $7,100 in cash director fees for service as a member
of the Board of Directors of the Company and BankUnited; 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; and
for the 1996 fiscal year, profit-sharing contributions of approximately
$6,824.
(K) Reflects for the 1998 fiscal year, a stock bonus of 541 shares of Class
B Common Stock with a fair market value on the date of grant of
approximately $7,100, paid in the 1998 fiscal year for services during
the 1997 fiscal year; for the 1997 fiscal year, 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; and for 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.
(L) Includes 3,000 shares of restricted Class B Common Stock granted in
lieu of cash salary for a portion of Mrs. Ford's annual compensation,
which had a fair market value of approximately $33,000 as of the end of
fiscal 1998. Dividends may be paid on the restricted stock.
(M) Includes for the 1998 fiscal year, approximately $235 in life insurance
premiums paid by the Company, contributions by the Company of
approximately $5,795 and $6,423 to the 401(K) and profit-sharing plans,
respectively, and $7,100 in cash directors fees for service as a member
of the Board of Directors of the Company and BankUnited; for the 1997
fiscal year, approximately $138 in life insurance premiums, and
approximately $2,634 and $8,671 in 401(K) and profit-sharing
contributions, respectively; and for the 1996 fiscal year, 401 (K) and
profit-sharing contributions of approximately $1,034 and $3,947,
respectively.
(N) Includes 3,000 shares of Class B Common Stock with a fair market value
of approximately $21,713 on the date of grant that were granted in lieu
of cash salary for a portion of the officer's annual compensation.
(O) Reflects for the 1998 fiscal year, a stock bonus of 104 shares of Class
A Common Stock with a fair market value on the date of grant of
approximately $1,364 and a cash bonus of $1,386, paid in the 1998
fiscal year for services during the 1997 fiscal year.
(P) Includes for the 1998 fiscal year, approximately $191 in life insurance
premiums paid by the Company.
(Q) Reflects for the 1998 fiscal year, a stock bonus of 209 shares of Class
A Common Stock with a fair market value on the date of grant of
approximately $2,741 and a cash bonus of $2,759, paid in the 1998
fiscal year for services during the 1997 fiscal year.
(R) Includes for the 1998 fiscal year, approximately $198 in life insurance
premiums paid by the Company as well as contributions by the Company of
approximately $4,026 to the 401(k) plan; and for the 1997 fiscal year,
approximately $108 in life insurance premiums.
9
<PAGE>
COMPENSATION PURSUANT TO PLANS
1998 STOCK OPTION GRANTS. The following table provides details
regarding stock options granted to the named executive officers during the 1998
fiscal year. In addition, in accordance with the rules and regulations of the
Securities and Exchange Commission, the table describes the hypothetical gains
that would exist for the respective options based on assumed rates of annual
compound stock appreciation of 5% and 10% from the date of grant to the end of
the option term. These hypothetical gains are based on assumed rates of
appreciation and, therefore, the actual gains, if any, on stock option exercises
are dependent on the future performance of the Class A Common, overall stock
market conditions, and the named executive officer's continued employment with
the Company and BankUnited. As a result, the amounts reflected in this table may
not necessarily be achieved.
<TABLE>
<CAPTION>
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
------------------------------------------------------------------- ----------------------------
NO. OF SECURITIES
UNDERLYING
OPTIONS/SARS PERCENTAGE OF TOTAL
GRANTED(#)(A) OPTIONS/SARS EXERCISE
-------------------------------- GRANTED OR BASE
CLASS A CLASS B SERIES B TO EMPLOYEES PRICE EXPIRATION
NAME COMMON COMMON PREFERRED IN FISCAL YEAR(B) ($/SHARE) DATE 5%($)(C) 10%($)(C)
- ----------------- --------- -------- ------------- ------------------- ----------- ------------- -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 83(E) * $ 9.298 2/18/2003 491 1,245
68(E) * $ 9.298 5/24/2003 398 1,008
435(E) * $ 9.298 2/26/2007 2,544 6,446
19,000(E) 2.15% $ 9.298 6/16/2007 111,102 281,554
465(E) * $ 9.298 8/25/2007 2,719 6,891
50,000(D)(E) 5.65% $13.909 10/27/2007 437,365 1,108,368
100,000(F)(E) 11.29% $13.909 10/27/2007 874,730 2,216,736
510(G)(E) * $ 9.298 11/17/2007 2,982 7,557
130,000(D)(E) 14.68% $13.909 2/23/2008 1,137,148 2,881,757
600(G)(E) * $ 9.298 2/23/2008 3,508 8,891
35,000(D)(E) 3.95% $13.909 3/16/2008 306,155 775,858
600(G)(E) * $ 9.298 5/19/2008 3,508 8,891
600(G)(E) * $ 9.298 8/26/2008 3,508 8,891
JAMES A. DOUGHERTY 435(E) * $ 9.298 2/26/2007 2,544 6,446
3,000(E) * $ 9.298 6/16/2007 17,542 44,456
465(E) * $ 9.298 8/25/2007 2,719 6,891
20,000(F)(E) 2.26% $ 9.298 10/27/2007 116,949 296,372
12,000(D)(E) 1.36% $ 9.298 10/27/2007 70,170 177,823
510(G)(E) * $ 9.298 11/17/2007 2,982 7,557
600(G)(E) * $ 9.298 2/23/2008 3,508 8,891
600(E) * $ 9.298 5/19/2008 3,508 8,891
600(G)(E) * $ 9.298 8/26/2008 3,508 8,891
EARLINE G. FORD 83(E) * $ 9.298 2/16/2003 485 1,230
68(E) * $ 9.298 5/24/2003 398 1,008
22(E) * $ 9.298 8/23/2003 129 326
435(E) * $ 9.298 2/26/2007 2,544 6,446
3,000(E) * $ 9.298 6/16/2007 17,542 44,456
465(E) * $ 9.298 8/25/2007 2,719 6,891
45,500(F)(E) 5.14% $ 9.298 10/27/2007 266,060 674,247
510(G)(E) * $ 9.298 11/17/2007 2,982 7,557
600(G)(E) * $ 9.298 2/23/2008 3,508 8,891
5,000(D)(E) * $ 9.298 3/16/2008 29,237 74,093
600(G)(E) * $9.298 5/19/2008 3,508 8,891
600(G)(E) * $9.298 8/26/2008 3,508 8,891
(TABLE CONTINUED ON NEXT PAGE)
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
------------------------------------------------------------------- ----------------------------
NO. OF SECURITIES
UNDERLYING
OPTIONS/SARS PERCENT OF TOTAL
GRANTED(#)(A) OPTIONS/SARS EXERCISE
--------------------------------- GRANTED OR BASE
CLASS A CLASS B SERIES B TO EMPLOYEES PRICE EXPIRATION
NAME COMMON COMMON PREFERRED IN FISCAL YEAR(B) ($/SHARE) DATE 5%($)(C) 10%($)(C)
- ----------------- ---------- --------- ----------- ------------------ ---------- ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
CLIFFORD A. HOPE** 2,500(E) * $ 9.298 8/25/2007 14,619 37,046
7,500(E) * $ 9.298 8/25/2007 43,856 111,140
10,000(F)(E) * $ 9.298 10/27/2007 58,475 148,186
7,500(D)(E) * $ 9.298 3/16/2008 43,856 111,140
10,000(D)(E) * $ 9.298 4/24/2008 58,475 148,186
DONALD PUTNAM 12,000(F)(E) 1.36% $ 9.298 10/27/2007 70,170 177,823
__________
#- -Number of shares underlying options granted.
$- -Dollar amounts.
*- -Less than 1%.
**- -This individual ceased to be an executive officer of the Company and
BankUnited effective December 16, 1998.
</TABLE>
(A) All information provided relates to option grants. The Company does not
grant SARs. The exercise price of each option is at least the fair
market value of the stock covered by the option on the date of grant.
(B) Does not include the options granted to employees who are also
directors as partial payment for directors' fees. Percentages for
options to acquire Class B Common Stock were calculated assuming that
each underlying share of Class B Common Stock was converted into Class
A Common Stock, and percentages for options to acquire Series B
Preferred Stock were calculated assuming that each underlying share of
Series B Preferred Stock was converted into 1.4959 shares of Class A
Common Stock. See "Election of Directors--Compensation of Directors"
and Note (G).
(C) The potential realizable values of the options to acquire Class B
Common Stock were calculated assuming that each underlying share of
Class B Common Stock was converted into 1 share of Class A Common
Stock, and the potential realizable values of the options to acquire
Series B Preferred Stock were calculated assuming that each underlying
share of Series B Preferred Stock was converted into 1.4959 shares of
Class A Common Stock.
(D) These options were granted under the 1996 Plan for extraordinary
services rendered during the 1998 fiscal year. Each option has a term
of 10 years from the date of grant, but may terminate sooner upon
termination of the holder's employment or service with the Company or
BankUnited. Each option for Class A Common Stock becomes exercisable
for one-fifth of the total shares covered by the option following the
date of grant. In the event of the death or disability of the optionee,
or upon a change in control of the Company, as defined in the 1996
Plan, each option for Class A Common Stock becomes immediately
exercisable for the total number of shares covered by the option.
(FOOTNOTES CONTINUED ON NEXT PAGE.)
11
<PAGE>
(E) These options were deemed granted pursuant to an option repricing
approved by the Company's Board on September 3, 1998. All terms of the
options are the same as the previous options, except that the exercise
price of the options to purchase shares of Class A Common Stock and
Class B Common Stock was changed to the fair market value of the Class
A Common Stock on September 3, 1998, and the exercise price of the
options to purchase shares of Series B Preferred Stock was changed to
the product of 1.4959 multiplied by the fair market value of the Class
A Common Stock on September 3, 1998.
(F) These options were granted under the 1996 Plan for 1998 fiscal year
performance. Each option has a term of 10 years from the date of grant,
but may terminate sooner upon termination of the holder's service or
employment with the Company or BankUnited. Each option for Class A
Common Stock becomes exercisable for one-fifth of the total shares
covered by the option in each year of the five-year period following
the date of grant. In the event of the death or disability of the
optionee, or upon a change in control, as defined in the 1996 Plan,
each option for Class A Common Stock becomes immediately exercisable
for the total number of shares covered by the option.
(G) These options to acquire shares of Class A Common Stock were granted
under the 1996 Plan as partial payment of fees for service on the Board
of Directors of the Company and BankUnited. See "Election of
Directors--Compensation of Directors." The options have 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.
12
<PAGE>
1998 STOCK OPTION EXERCISES. The named executive officers exercised
stock options during the 1998 fiscal year as follows:
<TABLE>
<CAPTION>
AGGREGATED OPTION/SAR EXERCISES AND FISCAL YEAR-END OPTION/SAR VALUE (A)
NUMBER OF
SECURITIES VALUE OF
UNDERLYING UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS/SARS OPTIONS/SARS
AT END(#)(A) AT FY-END ($)(A)
SHARES ACQUIRED -------------------------- ---------------------------
NAME ON EXERCISE(#) VALUE REALIZED ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- -------------- -------------- ------------------ ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 13,957(B) 49,359 933,618 -- $3,319,634 --
JAMES A. DOUGHERTY 6,500 52,130 53,725 50,102 $213,329 $107,411
EARLINE G. FORD 20,774 140,083 409,439 -- $1,684,890 --
CLIFFORD A. HOPE* -- -- 5,000 32,500 $8,510 $55,315
DONALD PUTNAM -- -- 3,333 18,667 $8,145 $36,716
__________
#- -Number of shares.
$- -Dollar amounts.
*- -This individual ceased to be an executive officer of the Company effective
December 16, 1998.
</TABLE>
(A) All information provided relates to options. The Company does not grant
SARs.
(B) Includes the exercise, by the Camner Family Foundation, a non-profit
charitable organization of which Mr. Camner is a director, of options
to acquire 13,957 shares of Class B Common Stock.
13
<PAGE>
EXECUTIVE EMPLOYMENT AGREEMENTS
The Company and BankUnited have separate employment agreements with
Alfred R. Camner, both of which were amended and restated with the approval of
the Company's and BankUnited's Boards of Directors (collectively, the "Board" or
"Board of Directors") during fiscal 1998. In addition, during fiscal 1998, the
Company and BankUnited had change of control agreements with Earline G. Ford,
James A. Dougherty, Clifford A. Hope and Donald B. Putnam.
The employment agreements establish the duties and compensation of Mr.
Camner, and, together with the change of control agreements, are intended to
ensure that the Company and BankUnited will be able to maintain stable and
competent executive management. The continued success of the Company and
BankUnited depend to a significant degree on the skills and competence of such
executive management.
Mr. Camner's employment agreement with the Company is effective as of
November 14, 1997 and has a five year term which is automatically extended by
one additional day each day, unless either party elects not to extend the
agreement. Mr. Camner's agreement with BankUnited has a three-year term which,
commencing on the first anniversary date and continuing on each anniversary date
thereafter, may be extended by BankUnited's Board for an additional year, so
that the remaining term will be three years, after a performance review and
unless Mr. Camner objects to such extension. Each change of control agreement
continues in effect until terminated by the parties or until the termination of
the officer's employment.
Mr. Camner's employment agreements with the Company and BankUnited
provide in the aggregate for an annual salary of $325,000 ($300,000 prior to
October 14, 1998), which may be increased by the Board of Directors upon review
prior to each anniversary date of the agreement. In addition to salary, Mr.
Camner may receive other cash or stock compensation from the Company, and other
cash compensation from BankUnited. The time, amounts and terms of such
additional compensation will be determined by the Board of Directors from time
to time. Mr. Camner will also be entitled to participate in and receive benefits
under any and all employee benefit and compensations plans maintained by and
covering similar executives of the Company and BankUnited.
Mr. Camner's employment agreements provide for termination by the
Company or BankUnited at any time for cause, as defined in the agreements. Mr.
Camner will be entitled to receive severance benefits upon termination, unless
termination occurs because of discharge for cause, death or disability, or,
except in certain circumstances specified in the agreement, voluntary
resignation. Mr. Camner will also be entitled to severance benefits if he
resigns following a change in control (as defined in the agreements), or if a
change in control occurs within 18 months of his termination for death or
disability. The severance payments and benefits to which Mr. Camner may become
entitled include earned and unpaid compensation, accrued benefits, continuation
of insurance benefits for the remaining term of the agreement and lump sum
payments for discounted salary, benefits, employer defined plan contributions,
bonuses and incentive compensation which would have been earned by Mr. Camner
during the remaining term of the employment agreement. In addition, severance
payments include continued provision to Mr. Camner, at the expense of the
Company and BankUnited, of certain facilities and services comparable to that
provided to Mr. Camner prior to termination.
Payments to Mr. Camner under his employment agreement with BankUnited
will be guaranteed by the Company in the event that payments or benefits are not
paid by BankUnited. For example, the BankUnited employment agreement will have
restrictions on the dollar amount of compensation and benefits payable to Mr.
Camner in the event of termination following a "change in control." In general,
for purposes of the employment agreement and the plans maintained by the Company
or BankUnited, a "change in control" will generally be deemed to occur (i)
except in certain circumstances, when the Company's stockholders approve a
reorganization, merger or consolidation of the Company or BankUnited with one or
more other persons; (ii) when a person or group of persons acquire substantially
all of the Company's or BankUnited's assets or beneficial ownership of 20% or
more of the Company's or BankUnited's outstanding securities entitled to vote in
the election of directors, or when the Company's or BankUnited's stockholders
approve any transaction which would result in such an acquisition; (iii) upon
the complete liquidation or dissolution of
14
<PAGE>
the Company or BankUnited or upon approval of a plan for such liquidation or
dissolution by the Company's or BankUnited's stockholders; or (iv) upon the
occurrence of any event if such event results in a change in control of a
majority of the members of the Board of Directors of the Company or BankUnited.
The Company's employment agreement will not have these restrictions. Payment
under the Company's agreement would be made by the Company. To the extent that
payments under the Company's employment agreement and BankUnited's employment
agreement are duplicative, payments due under the Company's employment agreement
would be offset by amounts actually paid by BankUnited. The employment
agreements also provide for the Company and BankUnited to indemnify Mr. Camner
for reasonable costs incurred by him as a result of his good faith efforts to
defend or enforce the agreements; provided that he shall have substantially
prevailed on the merits.
Cash and benefits paid to Mr. Camner under the employment agreements
together with payment under other benefit plans following a "change in control"
of the Company or BankUnited may constitute an "excess parachute" payment under
Section 280G of the Code, resulting in the imposition of a 20% excise tax on the
recipient and the denial of the reduction for such excess amounts to the Company
and BankUnited. The Company's employment agreement includes a provision
indemnifying Mr. Camner on an after-tax basis for any "golden parachute" excise
taxes. If a change in control of the Company and BankUnited had occurred during
the 1998 fiscal year under circumstances entitling Mr. Camner to severance
payments under his employment agreements, he would have received an aggregate
severance and tax indemnification payment totaling approximately $5,155,800,
based upon the interest rate assumptions currently in effect. Mr. Camner's
employment agreement with the Company provides for the Company to pay him any
severance and related payments, such as the "golden parachute" tax
indemnification payments, that may not be paid to him by BankUnited due to
applicable regulatory restrictions.
The change of control agreements with Mrs. Ford, Mr. Dougherty, Mr.
Hope and Mr. Putnam do not affect BankUnited's employment rights or obligations
with respect to the executive officers prior to a change in control. 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 or if the executive officer terminated his
employment for good reason 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
the continuation of life, health, accident, disability and medical insurance
benefits, and for other employee welfare benefits, following termination.
If the named executive officers had been entitled to severance payments
pursuant to their respective change of control agreements during the 1998 fiscal
year, the maximum severance payments payable to them would have been as follows:
Mrs. Ford, $405,900; Mr. Dougherty $371,192; Mr. Hope, $132,750 and Mr. Putnam,
$135,500. Any payments made pursuant to the agreements, however, would be
subject to the limitations set forth in Section 280G of the Internal Revenue
Code of 1986, as amended.
15
<PAGE>
REPORT ON REPRICING OF OPTIONS/SARS
During the 1998 fiscal year, the Company amended the exercise price of
certain stock options previously awarded to directors, officers and employees of
the Company, including several of the named executive officers. The repricing
was approved by the Board to restore the value of stock options which, as a
result of a significant decline in the securities markets and the price of the
Class A Common Stock, had ceased to provide an incentive for valued employees,
officers, and directors to remain in the service of the Company and the Bank.
The affected options were amended to reduce the exercise prices to at least the
fair market value of the underlying stock on the date of the repricing. All
other terms of the options remained the same. The following table shows all
repricings during the last 10 years of options and SARs held by executive
officers of the Company.
<TABLE>
<CAPTION>
TEN-YEAR OPTION/SAR REPRICINGS (A)
LENGTH
NUMBER OF PER SHARE PER SHARE (IN YEARS) OF
SECURITIES MARKET PRICE EXERCISE ORIGINAL
UNDERLYING OF STOCK AT PRICE AT OPTION TERM
OPTIONS/ TIME OF TIME OF REMAINING AT
SARS REPRICING OR REPRICING OR NEW DATE OF
REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME DATE AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
- ------------------------- ------ --------------- ---------------- ------------ ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Alfred R. Camner 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
Chairman of the Board, 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
Chief Executive Officer 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
and President* of the 9/3/98 19,000 $ 9.298 $ 9.5656 $ 9.298 9
Company and BankUnited 9/3/98 465 $ 9.298 $ 10.741 $ 9.298 9
9/3/98 510 $ 9.298 $ 13.235 $ 9.298 9
9/3/98 600 $ 9.298 $ 13.493 $ 9.298 9
9/3/98 600 $ 9.298 $ 17.075 $ 9.298 10
9/3/98 600 $ 9.298 $ 10.975 $ 9.298 10
9/3/98 50,000 $ 13.909 $ 19.125 $ 13.909 9
9/3/98 100,000 $ 13.909 $ 19.125 $ 13.909 9
9/3/98 130,000 $ 13.909 $ 19.21 $ 13.909 9
9/3/98 35,000 $ 13.909 $ 21.0742 $ 13.909 10
1/15/91 7,500 $ 4.675 $ 7.00 $ 4.675 6
1/15/91 10,000 $ 4.675 $ 6.50 $ 4.675 7
1/15/91 17,000 $ 4.675 $ 6.75 $ 4.675 8
Earline G. Ford 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
Executive Vice President 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
and Treasurer of 9/3/98 22 $ 9.298 $ 11.30 $ 9.298 5
BankUnited and the 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
Company; Corporate 9/3/98 3,000 $ 9.298 $ 9.5656 $ 9.298 9
Secretary of BankUnited 9/3/98 465 $ 9.298 $ 10.741 $ 9.298 9
9/3/98 45,500 $ 9.298 $ 12.75 $ 9.298 9
9/3/98 510 $ 9.298 $ 13.235 $ 9.298 9
9/3/98 600 $ 9.298 $ 13.493 $ 9.298 9
9/3/98 5,000 $ 9.298 $ 14.088 $ 9.298 10
9/3/98 600 $ 9.298 $ 17.075 $ 9.298 10
9/3/98 600 $ 9.298 $ 10.975 $ 9.298 10
1/15/91 5,000 $ 4.675 $ 7.00 $ 4.675 6
1/15/91 7,500 $ 4.675 $ 6.50 $ 4.675 7
1/15/91 10,000 $ 4.675 $ 6.75 $ 4.675 8
James A. Dougherty 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
Executive Vice President 9/3/98 3,000 $ 9.298 $ 9.5656 $ 9.298 9
and Chief Operating 9/3/98 465 $ 9.298 $ 10.741 $ 9.298 9
Officer* of the Company 9/3/98 20,000 $ 9.298 $ 12.75 $ 9.298 9
and BankUnited 9/3/98 12,000 $ 9.298 $ 12.75 $ 9.298 9
9/3/98 510 $ 9.298 $ 13.235 $ 9.298 9
9/3/98 600 $ 9.298 $ 13.493 $ 9.298 9
9/3/98 600 $ 9.298 $ 17.075 $ 9.298 10
9/3/98 600 $ 9.298 $ 10.975 $ 9.298 10
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF PER SHARE PER SHARE LENGTH OF
SECURITIES MARKET PRICE EXERCISE ORIGINAL
UNDERLYING OF STOCK AT PRICE AT OPTION TERM
OPTIONS/ TIME OF TIME OF REMAINING AT
SARS REPRICING OR REPRICING OR NEW DATE OF
REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME DATE AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
- ------------------------- ------ --------------- ---------------- ------------ --------- -----------
<S> <C> <C> <C> <C> <C> <C>
Clifford A Hope** 9/3/98 2,500 $ 9.298 $ 10.741 $ 9.298 9
Executive Vice President 9/3/98 7,500 $ 9.298 $ 10.741 $ 9.298 9
and Chief Financial 9/3/98 10,000 $ 9.298 $ 12.75 $ 9.298 9
Officer of the Company 9/3/98 7,500 $ 9.298 $ 14.088 $ 9.298 10
and BankUnited 9/3/98 10,000 $ 9.298 $ 15.159 $ 9.298 10
Donald Putnam 9/3/98 12,000 $ 9.298 $ 12.750 $ 9.298 9
Executive Vice President
of the Company and
and BankUnited
Lawrence H. Blum 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
Vice Chairman of the
Board 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
9/3/98 840 $ 9.298 $ 10.741 $ 9.298 9
9/3/98 11,000 $ 9.298 $ 12.75 $ 9.298 9
9/3/98 355 $ 9.298 $ 13.235 $ 9.298 9
9/3/98 600 $ 9.298 $ 13.493 $ 9.298 9
9/3/98 600 $ 9.298 $ 17.075 $ 9.298 10
9/3/98 600 $ 9.298 $ 10.975 $ 9.298 10
1/15/91 400 $ 4.675 $ 6.50 $ 4.675 7
1/15/91 2,500 $ 4.675 $ 6.75 $ 4.675 8
Marc Lipsitz 9/3/98 60 $ 9.298 $ 9.5357 $ 9.298 8
Corporate Secretary 9/3/98 10,000 $ 9.298 $ 9.700 $ 9.298 9
9/3/98 90 $ 9.298 $ 10.741 $ 9.298 9
9/3/98 13,000 $ 9.298 $ 12.75 $ 9.298 9
9/3/98 110 $ 9.298 $ 13.235 $ 9.298 9
9/3/98 350 $ 9.298 $ 13.493 $ 9.298 9
9/3/98 5,000 $ 9.298 $ 15.159 $ 9.298 10
9/3/98 450 $ 9.298 $ 17.075 $ 9.298 10
9/3/98 450 $ 9.298 $ 10.975 $ 9.298 10
__________
#--Number of shares.
$--Dollar amounts.
*--Until December 1, 1998.
**-This individual ceased to be an executive officer of the Company and
BankUnited effective December 16, 1998.
</TABLE>
(A) All information provided relates to option grants. The Company does not
grant stock appreciation rights. This table does not include
information for repricings of options which occurred after the end of
the last completed fiscal year. On October 14, 1998, the Board approved
a second repricing of stock options previously issued by the Company,
due to the continuing significant decline in the market price of the
Company's Class A Common Stock. As a result of this second repricing,
all options to purchase Class A Common Stock or Class B Common Stock
which had an exercise price greater than $7.25 on October 14, 1998,
including the options listed above which were repriced on September 3,
1998, as well as other options, were amended to reduce such exercise
price to $7.25. All options to repurchase Series B Preferred Stock
which had an exercise price greater than $10.8452 on October 14, 1998
were amended to reduce such exercise price to $10.8452. The new
exercise prices were at least equal to the fair market values of the
underlying stock on October 14, 1998.
(B) Based on the fair market value of the Class A Common Stock as quoted on
the Nasdaq National Market System on the date of repricing. The market
price of the Class B Common Stock, which is not publicly traded, is
equal to the market price of the Class A Common Stock, and the market
price of the Series B Preferred Stock is equal to 1.4959 multiplied by
the market price of the Class A Common Stock.
COMPENSATION COMMITTEE:
ALLEN BERNKRANT
MARC D. JACOBSON
NEIL H. MESSINGER, M.D.
17
<PAGE>
REPORT ON EXECUTIVE COMPENSATION
Pursuant to the rules of the Securities and Exchange Commission, set
forth below is the report of the Compensation Committee and the Board of
Directors regarding their compensation policies for the fiscal year ended
September 30, 1998, 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 executive officers including the named
executive officers of the Company (James A. Dougherty, Earline G. Ford, Clifford
A. Hope and Donald Putnam).
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 1998, the Board and
the Compensation Committee considered the Company's performance in the 1997
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 merger with Consumers Bancorp, Inc. and other possible
acquisitions in fiscal 1998: 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 1998. 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 fiscal 1998 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. The Committee reviewed information on employment agreements between
other financial institutions and their executive officers, and, 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.
During fiscal 1998, the Board and the Committee also reviewed
compensation in consideration of events in the securities markets, particularly
the significant decline in the market price of the Company's Class A Common
Stock.
18
<PAGE>
Based on this review, the Board and Committee endeavored to take such actions as
were necessary and appropriate to restore the then current value of stock
options which had been previously been granted to employees, officers and
directors of the Company and BankUnited as a portion of their compensation.
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 1998 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.
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 fiscal
1998, the Board used certain performance-based criteria in determining the
number of shares covered by each award of options or stock 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-fifth of the total shares covered by the
option in each year of the five-year period beginning on the date of grant. The
Board also granted shares of restricted stock, which vest over a period of years
from the date of grant. Except in certain circumstances, such as a change in
control, awards of options and stock subject to vesting are forfeited as to the
portion remaining unvested at the date of termination, if the officer or
employee leaves the Company and BankUnited prior to completion of the vesting
schedule. The Board believes that these vesting schedules will encourage
executive officers to make long-term commitments to the Company and BankUnited.
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 any such factor).
CHIEF EXECUTIVE OFFICER'S 1998 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 bonus and
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 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 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. For fiscal 1998, the Board and the Compensation
Committee considered similar factors in establishing annual stock and stock
option 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
19
<PAGE>
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
EARLINE G. FORD
BRUCE D. FRIESNER
MARC D. JACOBSON
MARC LIPSITZ
NEIL H. MESSINGER, M.D.
ANNE W. SOLLOWAY
20
<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 is a vice president of Head-Beckham Insurance Agency, Inc.
("Head-Beckham"). During the 1998 fiscal year, the Company paid Head-Beckham
Insurance Agency, Inc. ("Head-Beckham") the sum of approximately $444,769 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 $51,346 represented the agency's
commissions. 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.
During the 1998 fiscal year, the Company and BankUnited employed the
law firm of Stuzin and Camner, Professional Association, and, since October 1,
1998, the successor to that firm, Camner, Lipsitz and Poller, Professional
Association, as general counsel. Alfred R. Camner, Chief Executive Officer and
Chairman of the Boards of the Company and BankUnited, is the Senior Managing
Director of Camner, Lipsitz and Poller. Marc Lipsitz, Corporate Secretary and a
member of the Board of the Company, is the Managing Director of Camner, Lipsitz
and Poller. During the 1998 fiscal year, the Company paid Camner, Lipsitz and
Poller approximately $2.2 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 opened a branch office. The property is owned
by a partnership, which is owned 25% by Alfred Camner, 25% by Charles B. Stuzin,
a shareholder shown in the table, "Security Ownership of Certain Beneficial
Owners and Management," and the remaining 50% by Ruth Stuzin, Charles B.
Stuzin's mother. During fiscal 1998, the annual rent was $126,000. Effective
November 1, 1998, the annual rent for the property was reduced to $124,668 and
the initial term of the lease was extended from three years to approximately six
and one-half years. The lease may be renewed for four additional three-year
terms. In addition, BankUnited paid approximately $816,653 for leasehold
improvement costs and termination of lease costs to unaffiliated parties. The
lease terms, including the early termination payment, were made at market rates
which were at that time 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.
21
<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, 1993 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.
<TABLE>
<CAPTION>
CUMULATIVE TOTAL RETURN
-------------------------------------------
9/93 9/94 9/95 9/96 9/97 9/98
<S> <C> <C> <C> <C> <C> <C>
BANKUNITED FINANCIAL CORPORATION 100.00 74.28 89.14 92.11 156.00 130.74
NASDAQ STOCK MARKET (U.S.) 100.00 100.83 139.28 165.24 226.81 231.84
DOW JONES SAVINGS & LOAN ASSOCIATIONS 100.00 99.51 129.87 155.46 304.83 257.62
</TABLE>
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.
22
<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
875,000, 425,000 and 375,000, respectively, to 1,350,000, 700,000 and 650,000,
respectively. Pursuant to the amendment, Section 5(a) of the Plan shall be
amended by (1) changing the numbers "875,000," "425,000" and "1,300,000" in the
first sentence of Section 5(a), to "1,350,000" "700,000" and "2,050,000,"
respectively, and (2) changing the number "375,000" in the second sentence of
Section 5(a), to "650,000."
As of December 1, 1998, the Board had approved and granted under the
1996 Plan, options and stock awards for 953,128 shares of Common Stock and
455,762 shares of Series B Preferred Stock (including 80,762 shares of Series B
Preferred Stock subject to approval of this Proposal Two), of which options and
stock awards for 80,915 shares of Common Stock had been forfeited and options
for 23,435 shares of Common Stock had been exercised. As of December 1, 1998,
there were 427,787 shares of Common Stock and no shares of Series B Preferred
Stock available for grant under the 1996 Plan.
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.
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 1999. 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 approved by the shareholders at the 1997 Annual Meeting, and amended by the
shareholders at the 1998 Annual Meeting to increase the number of shares
available for grant. The flexible terms of the 1996 Plan provide for grants of
options, a variety of other stock- related awards, and annual incentive awards
that may be settled in part by the grant of stock. The 1996 Plan is intended 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."
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")
23
<PAGE>
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
1,350,000 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 700,000. To the extent that the total number of shares of Common
Stock does not exceed 2,050,000 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 650,000.
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 1998 Plan. Shares issued under the 1996 Plan
may be either newly issued shares or treasury shares. On December 21, 1998 the
last reported sale price of the Class A Common Stock, the only publicly traded
stock issuable under the 1996 Plan, was $7.28 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.
24
<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, and such accelerated exercisability, lapse, and
expiration shall occur automatically in the case of a "change in control" of the
Company. Subject to certain exceptions, the 1996 Plan defines a "change in
control" as (i) if any person, who does not currently hold 10% or more of the
combined voting power of the securities of the Company, becomes a beneficial
owner of securities representing 50% or more of the combined voting power of the
securities of the Company, (ii) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent entity) 50% or more of the combined voting power of the
voting securities of the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger or consolidation
effected to implement a recapitalization of the Company (or similar transaction)
in which no person acquired 50% or more of the combined voting power of the
Company's then outstanding securities; or (iii) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets (or any transaction having a similar effect).
25
<PAGE>
NEW PLAN BENEFITS
The following table sets forth the awards authorized under the
1996 Plan which were granted during the 1998 fiscal year to the persons who were
named executive officers and specified groups of executive officers, directors
and employees. The table includes options which were repriced and deemed granted
during the 1998 fiscal year.
1996 EXECUTIVE INCENTIVE COMPENSATION AND STOCK AWARD PLAN
<TABLE>
<CAPTION>
NAME AND POSITION NUMBER OF SHARES (1)
------------------ --------------------------------
<S> <C>
Alfred R. Camner 3,210 Class A Common (3)
Chairman, President and Chief 19,000 Class B Common (3)
Executive Officer (2) 315,000 Series B Preferred (3)
20,000 Series B Preferred (4)
Earline G. Ford 3,210 Class A Common (3)
Executive Vice President and 53,500 Class B Common (3)
Treasurer 3,000 Class B Common (4)
James A. Dougherty 38,210 Class A Common (3)
Executive Vice President and Chief 3,000 Class A Common (4)
Operating Officer (5)
Clifford A. Hope (6) 37,500 Class A Common (3)
Executive Vice President and Chief
Financial Officer
Donald Putnam 12,000 Class A Common (3)
Executive Vice President of
BankUnited
All current Executive Officers as a 110,945 Class A Common (3)
Group (8 in number) (7) 5,800 Class A Common (4)
72,500 Class B Common (3)
3,000 Class B Common (4)
315,000 Series B Preferred (3)
20,000 Series B Preferred (4)
All current Non-Executive Officer 18,925 Class A Common (3)
Directors as a group (5 in number)
All other current Employees 535,805 Class A Common (3)
(Including current officers who are
not executive officers of the
Company)
</TABLE>
(1) On December 21, 1998, the per share fair market values of the Class A
Common Stock, Class B Common Stock and Series B Preferred Stock were
$7.28, $7.28 and $10.89, respectively.
(2) This individual ceased to be President effective December 1, 1998.
(3) Options, including options which were repriced during fiscal 1998.
(4) Restricted Stock
(5) This individual ceased to be Chief Operating Officer effective December
1, 1998.
(6) This individual ceased to be an executive officer of the Company and
BankUnited effective December 16, 1998.
(7) Does not include Mehdi Ghomeshi, who was appointed President and Chief
Operating Officer of the Company and the Bank, Diane DeLella, who was
appointed Chief Financial Officer of the Company and the Bank, or
Vincent Post, who was appointed Executive Vice President of the Company
and the Bank, after the end of the fiscal year.
26
<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 of the 1996
Plan, certain of the annual performance-based stock option awards which the
Compensation Committee contemplates granting under the 1996 Plan for the 1999
fiscal year 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
27
<PAGE>
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.
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.
28
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 16,
1998 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 10.26% 37,860 9.22% 97,817 *
P.O. Box 56-1122 (2)(3) (4)
Miami, FL 33256-1122
Lawrence H. Blum 23,560 10.26% 65,854 16.11% 244,689 1.36%
SunTrust Building - 10th Floor (2) (4) (5)
1 Southeast Third Avenue
Miami, FL 33131
Alfred R. Camner 551,780 83.03% 1,650,933 90.60% 1,838,971 9.43%
255 Alhambra Circle (6) (2)(7)(8) (9)
Coral Gables, FL 33134
Diane DeLella -- -- -- -- 13,214 *
255 Alhambra Circle (10)
Coral Gables, FL 33134
James A. Dougherty -- -- -- -- 113,814 *
255 Alhambra Circle (4)(5)
Coral Gables, FL 33134
Earline G. Ford 5,000 2.18% 485,693 60.19% 521,141 2.84%
255 Alhambra Circle (2)(3)(7) (4)
Coral Gables, FL 33134 (5)
Bruce D. Friesner -- -- -- -- 26,050 *
5431 North 36th Court (10)
Hollywood, FL 33021
Mehdi Ghomeshi -- -- -- -- 105,000 *
255 Alhambra Circle (10)
Coral Gables, FL 33134
</TABLE>
(FOOTNOTES FOLLOWING.)
29
<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
Marc D. Jacobson 10,000 4.36% 44,040 10.58% 142,284 *
3050 Biscayne Boulevard (2)(3)(4) (4)
Fourth Floor (7)
Miami, FL 33137
Marc Lipsitz -- -- 500 * 61,815 *
550 Biltmore Way (10)
Suite 700
Coral Gables, FL 33134
David Malinoff -- -- -- -- 4,000 *
255 Alhambra Circle (10)
Coral Gables, FL 33134
Neil Messinger, M.D. -- -- -- -- 17,197 *
10801 S.W. 93rd Court (10)
Miami, FL 33176
Vincent Post -- -- -- -- -- *
255 Alhambra Circle
Coral Gables, FL 33134
Donald B. Putnam -- -- -- -- 34,209 *
255 Alhambra Circle (10)
Coral Gables, FL 33134
Anne W. Solloway -- -- 31,856 7.95% 44,564 *
8124 S.W. 87th Terrace (3)(7) (9)
Miami, FL 33143
All current directors and 613,900 92.37% 2,284,884 96.39% 3,220,201 15.70%
executive officers of the (11) (11)
Company and BankUnited
as a group (15 persons)
</TABLE>
(FOOTNOTES FOLLOWING.)
30
<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. -- -- -- -- 1,152,874 6.47%
4400 Biscayne Boulevard (12)
Miami, Florida 33137
Charles B. Stuzin 16,560 7.21% 81,563 18.68% 176,180 *
550 Biltmore Way (7)(13) (14)
Suite 700
Coral Gables, Florida 33134
James M. Stuzin 7,000 3.05% 60,090 15.65% 60,506 *
550 Biltmore Way (15) (16)
Suite 700
Coral Gables, Florida 33134
Harvey Miller 13,560 5.91% 20,354 5.17% 40,520 *
SunTrust Building - 10th Floor (17)
1 Southeast Third Avenue
Miami, Florida 33131
Barry Shulman 13,560 5.91% 20,284 5.15% 96,942 *
3999 N.E. 15th Avenue (17) (17)
Ft. Lauderdale, FL 33334
__________
* Less than 1%
</TABLE>
(1) The nature of the reported beneficial ownership as of December 16, 1998
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,
including shares issuable upon the exercise of options to acquire
Series B Preferred Stock, and upon the exercise of options to acquire
Class B Common 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 and Class B Common Stock, including shares
issuable upon the exercise of options to acquire Class B Common Stock
and Series B Preferred Stock, and upon the exercise of options to
acquire Class A Common Stock. 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. Alfred R. Camner is Anne W. Solloway's son.
(2) Includes 35,243; 35,243; 825,407; 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, including shares issuable upon the exercise
of options to acquire 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.
31
<PAGE>
(3) Includes 1,745; 426,001; 27,639 and 27,057 shares of Class B Common
Stock that may be acquired individually by each of Allen M. Bernkrant,
Earline G. Ford, Marc D. Jacobson and Anne W. Solloway, respectively,
upon the exercise of options under the Company's option plans.
(4) Includes 16,880; 60,730; 9,009; 14,865 and 107,427 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 James A.
Dougherty, respectively, upon the exercise of options granted under the
Company's option plans.
(5) Includes 3,000; 5,424 and 2,800 shares of restricted stock held by
Earline Ford, James Dougherty and Lawrence Blum, respectively, which
vest over a 3-year period from the date of grant.
(6) 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, as well as options to purchase 435,000 shares of
Series B Preferred Stock which were granted to Alfred Camner.
(7) 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.
(8) Includes 543,625 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 79,719 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 (7) above, and 1,163
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, and 10,000 shares of Class
B Common Stock held in a trust for the benefit of Mr. Camner's
descendants. Also includes shares of Class B Common Stock that may be
acquired upon the conversion of 116,780 shares of Series B Preferred
Stock, and upon the exercise of options to purchase 435,000 shares of
Series B Preferred Stock, and the conversion of such shares.
(9) Includes 8,965 and 8,964 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.
(10) Includes 6,379; 52,050; 6,857; 25,000; 70,000; 3,000 and 10,700 shares
of Class A Common Stock that may be acquired by Bruce Friesner, Marc
Lipsitz, Neil Messinger, Donald Putnam, Mehdi Ghomeshi, David Malinoff
and Diane DeLella, respectively, upon the exercise of options granted
under the Company's option plans.
(11) Includes an aggregate of 435,000 shares of Series B Preferred Stock,
1,078,729 shares of Class B Common Stock and 397,826 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 (10) above.
(12) The number of shares beneficially owned by Phillip Frost does not
include 9,671 shares beneficially owned by his wife, Patricia Frost, a
former director of the Company, of which Dr. Frost disclaims beneficial
ownership.
32
<PAGE>
(13) 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.
(14) Includes 36,000 shares of Class A Common Stock that may be acquired
upon the exercise of options to purchase Class A Common Stock.
(15) Reflects shares of Series B Preferred Stock held as trustee of a trust
for the benefit of certain family members.
(16) 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.
(17) 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.
33
<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 Securities and Exchange Commission (the "Commission") 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, 1998, 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 that the April 1998 Form 4 report for
Lawrence Blum, a director and executive officer of the Company, was received one
day late by the Commission.
INDEPENDENT AUDITORS
The Audit Committee recommended and the Board of Directors approved the
selection of the accounting firm of PricewaterhouseCoopers LLP to audit the
Company's financial statements for the 1999 fiscal year. PricewaterhouseCoopers
LLP audited the Company's financial statements for the 1998 fiscal year.
Representatives of PricewaterhouseCoopers 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 1, 1999 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 AND
CHIEF EXECUTIVE OFFICER
December 29, 1998
34
<PAGE>
APPENDIX A
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 28, 1999 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
Mehdi Ghomeshi [_] [_]
Class III For Against
Allen M. Bernkrant [_] [_]
Earline G. Ford
Bruce D. Friesner
To withhold authority to vote for any Nominee, write
full name of nominee on the line below:_____________
____________________________________________________
____________________________________________________
2. Approval of Amendment to For Against Abstain
1996 Incentive Compensation [_] [_] [_]
and Stock Award Plan
Please mark, sign, date and return this Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly executed will be voted in the manner
directed by the undersigned shareholder, UNLESS CONTRARY DIRECTION IS GIVEN,
THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature_________________ Date________ Signature_________________ Date________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Alfred R. Camner and Lawrence H. Blum
or any one of them with full power of substitution, proxies to vote at the
Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on January 28, 1999 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
Mehdi Ghomeshi [_] [_]
Class III For Against
Allen M. Bernkrant [_] [_]
Earline G. Ford
Bruce D. Friesner
To withhold authority to vote for any Nominee, write
full name of nominee on the line below:_____________
____________________________________________________
____________________________________________________
2. Approval of Amendment to For Against Abstain
1996 Incentive Compensation [_] [_] [_]
and Stock Award Plan
Please mark, sign, date and return this Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly executed will be voted in the manner
directed by the undersigned shareholder, UNLESS CONTRARY DIRECTION IS GIVEN,
THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature_________________ Date________ Signature_________________ Date________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Alfred R. Camner and Lawrence H. Blum
or any one of them with full power of substitution, proxies to vote at the
Annual Meeting of Stockholders of BankUnited Financial Corporation (the
"Company") to be held on January 28, 1999 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
Mehdi Ghomeshi [_] [_]
Class III For Against
Allen M. Bernkrant [_] [_]
Earline G. Ford
Bruce D. Friesner
To withhold authority to vote for any Nominee, write
full name of nominee on the line below:_____________
____________________________________________________
____________________________________________________
2. Approval of Amendment to For Against Abstain
1996 Incentive Compensation [_] [_] [_]
and Stock Award Plan
Please mark, sign, date and return this Proxy card promptly, using the enclosed
envelope.
This Proxy is revocable and when properly executed will be voted in the manner
directed by the undersigned shareholder, UNLESS CONTRARY DIRECTION IS GIVEN,
THIS PROXY WILL BE VOTED "FOR" THE PROPOSALS.
Signature_________________ Date________ Signature_________________ Date________
Signature if held jointly
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
APPENDIX B 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.
B-1
<PAGE>
(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.
B-2
<PAGE>
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 1,350,000, 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 700,000, provided however that to the extent that the total number of
shares of Common Stock does not exceed 2,050,000 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
650,000.
(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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<PAGE>
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. In the event of a
"Change in Control," as defined in this Section:
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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.
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(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.
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