SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party Other Than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for use of the Commission only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss.240.14a-11(c) or ss.240.14a-12
BANKUNITED FINANCIAL CORPORATION
(Name of Registrant as Specified in Its Articles of Incorporation)
Marsha D. Bilzin, Esq.
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 WEDNESDAY, JANUARY 26, 2000
NOTICE IS HEREBY GIVEN that the 2000 Annual Meeting of Stockholders
(the "Annual Meeting") of BankUnited Financial Corporation (the "Company") will
be held at the Weston Hills Country Club, 2600 Country Club Way, Weston,
Florida, on Wednesday, January 26, 2000 at 11:00 a.m., for the following
purposes:
(1) To elect four Class I directors to serve until 2003, one
Class II director to serve until 2001 and one Class III director 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 by 250,000 shares, to a total of 2,300,000 shares,
the number of shares of the Company's Class A Common Stock and Class B
Common Stock for which awards may be granted.
(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 10, 1999 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 31, 1999
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 O CORAL GABLES, FLORIDA 33134
TELEPHONE: (305) 569-2000
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD AT 11:00 A.M. ON WEDNESDAY, JANUARY 26, 2000
AT THE WESTON HILLS COUNTRY CLUB
2600 COUNTRY CLUB WAY, WESTON, FLORIDA
INTRODUCTION
This Proxy Statement is furnished to stockholders of BankUnited
Financial Corporation (the "Company") in connection with the solicitation of
proxies for the Annual Meeting of Stockholders to be held on January 26, 2000
(the "Annual Meeting"). The Company's Board of Directors (the "Board" or "Board
of Directors") is soliciting proxies for use at the Annual Meeting and at any
postponements or adjournments thereof. This Proxy Statement describes the
matters to be considered at the Annual Meeting and, together with the proxy card
and accompanying reports, will be mailed to the Company's stockholders on or
about December 31, 1999.
VOTING AND SOLICITATION OF PROXIES
USE OF PROXIES AT THE ANNUAL MEETING
Proxies which are received by the Company prior to the Annual Meeting
and not revoked prior to use, will be voted at the Annual Meeting as instructed
thereon. Proxies must be in the accompanying form and properly executed.
Executed proxies with no instructions indicated thereon will be voted (i) FOR
the election of four Class I directors, one Class II director and one Class III
director, as described 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"). The 1996 Plan amendment will increase, by 250,000 shares, the
number of shares of the Company's Class A Common Stock and Class B Common Stock
(together, the "Common Stock") issuable for awards under the 1996 Plan. If the
amendment to the 1996 Plan is approved, a total of 2,300,000 shares of Common
Stock will be issuable for awards under the 1996 Plan.
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 as indicated in the Company's Proxy Statement for the 1999 Annual
Meeting. 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 on
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 Noncumulative Convertible Preferred Stock, Series B (the "Series
B Preferred Stock") at the close of business on December 10, 1999 (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, 17,871,547 shares of Class A Common Stock, 458,467 shares of Class
B Common Stock, and 295,821 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 previous mergers, in exchange for outstanding
stock certificates of the acquired companies. Under 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
The presence of a quorum at the Annual Meeting will be necessary for
action on a proposal. Holders of shares of Class A Common Stock, Class B Common
Stock, and Series B Preferred Stock, present in person or by proxy, and
representing a majority of the votes entitled to be cast as of the Record Date,
will 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 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 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 also use the services
of Georgeson Shareholder Communications, Inc., paid solicitors, to solicit
proxies, for a fee of $6,000 plus out-of-pocket expenses. 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 1999 Summary Annual Report to shareholders and
a copy of the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1999 (the " Form 10-K") is being mailed to stockholders with this
Proxy Statement. The Form 10-K was filed with the Securities and Exchange
Commission (the "Commission") on December 28, 1999 and includes the consolidated
financial statements for the Company for the 1999 fiscal year.
2
<PAGE>
PROPOSAL ONE
ELECTION OF DIRECTORS
The Board of Directors will consist of 12 members divided among Class
I, Class II and Class III. Pursuant to the Company's Bylaws, the directors of
each class serve for a three-year term, with the term of one class expiring at
each annual meeting of stockholders. The Board of Directors may elect a new
director to the Board during any fiscal year, but that director may serve only
until the next annual meeting of stockholders, at which time he or she must be
elected by the stockholders in order to continue on the Board.
At this Annual Meeting, the term of the four directors serving in Class
I will expire, and the Board has nominated those directors for reelection to new
terms ending in 2003. All four Class I nominees were elected by the stockholders
at previous annual meetings. In addition, the Board has nominated two directors
who were appointed to the Board during the fiscal year, on July 14, 1999 and
April 28, 1999. One director will serve in Class II, with a term ending in 2001,
and the other director will serve in Class III, with a term ending in 2002.
Described below is information about each nominee for director. 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), the shares as to which a proxy is
granted will be voted, at the discretion of the proxies, for such substitute
nominees named by the Board.
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 or more.
INFORMATION ABOUT THE NOMINEES
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
------------------------------------- --------
<S> <C>
The persons nominated as Class I directors are:
MARC D. JACOBSON: Age 57 1984
Director (1993 to present) and Secretary (1993 to 1997) of the
Company; Director (1984 to present) and Secretary (1985 to 1996) of
BankUnited; Senior Vice President of Head-Beckham AmerInsurance
Agency, Inc., and its predecessor, Head-Beckham Insurance Agency,
Inc. (1990 to present).
ANNE W. SOLLOWAY (1): Age 84 1985
Director of the Company (1993 to present) and BankUnited (1985 to
present); Private investor in Miami, Florida.
NEIL H. MESSINGER, M.D.: Age 61 1996
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 58 1996
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>
(TABLE CONTINUED ON NEXT PAGE.)
3
<PAGE>
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE
------------------------------------- --------
<S> <C>
The person nominated as a Class II director is:
A. FREDERICK SCHILD, M.D., F.A.C.S.: Age 67 1999
Director of the Company and the Bank (July 1999 to present);
Professor of Surgery, University of Miami School of Medicine,
Department of Surgery/Division of Transplantation (1992 to present);
President-Elect, American Society of General Surgery (March 1999 to
present); President, Florida Chapter, American College of Surgeons
(1998 to present); Chairman, Florida Medical Association Long Range
Planning Committee (1995 to 1997); President, Florida Medical
Association (1991 to 1992); President, Dade County Medical
Association (1984 to 1985).
The person nominated as a Class III director is:
BARRY SHULMAN: Age 50 1999
Director of the Company and the Bank (April 1999 to present); President,
TSF Sportswear, Inc. (1984 to present).
</TABLE>
INFORMATION ABOUT THE CONTINUING MEMBERS OF THE BOARD OF DIRECTORS
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR TERM AS DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
------------------------------------- -------- ----------------
<S> <C> <C>
The directors who are not currently standing for election are:
CURRENT CLASS II DIRECTORS:
LAWRENCE H. BLUM: Age 56 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 55 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).
</TABLE>
(TABLE CONTINUED ON NEXT PAGE.)
4
<PAGE>
<TABLE>
<CAPTION>
NAME, AGE, PRINCIPAL OCCUPATION, DIRECTOR TERM AS DIRECTOR
DIRECTORSHIPS AND BUSINESS EXPERIENCE SINCE EXPIRES
------------------------------------- -------- ----------------
<S> <C> <C>
MEHDI GHOMESHI: Age 43 1998 2001
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).
CURRENT CLASS III DIRECTORS:
ALLEN M. BERNKRANT: Age 69 1985 2002
Director of the Company (1993 to present) and BankUnited (1985 to
present); Private investor in Miami, Florida (1990 to present).
EARLINE G. FORD: Age 56 1984 2002
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).
BRUCE D. FRIESNER: Age 57 1996 2002
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).
</TABLE>
- -----------------
(1) Anne W. Solloway is Alfred R. Camner's mother.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF ALL OF THE
NOMINEES FOR ELECTION AS DIRECTORS.
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
Since January 28, 1999, Alfred R. Camner, Mehdi Ghomeshi, Lawrence Blum
and Marc Lipsitz have acted as the Executive Committee of the Company's Board
and, except for Marc Lipsitz, as the Executive Committee of BankUnited's Board.
During October and November 1998, Alfred R. Camner, Earline G. Ford and James A.
Dougherty made up the Executive Committee of the Company and BankUnited. During
December 1998 and January 1999, Alfred R. Camner, Earline G. Ford, Mehdi
Ghomeshi functioned as the Executive Committee of the Company and BankUnited.
5
<PAGE>
The Executive Committee is authorized to exercise the powers of the
Board of Directors between regular meetings of the Board, including the power to
formulate plans, policies and programs for the management, operation and
development of the Company and BankUnited. The Executive Committee also selects
nominees for election as directors. During the 1999 fiscal year, the Executive
Committee of the Company and Bank met as required.
Three non-management members of the Board serve as members of the
Compensation Committee of the Company and BankUnited: Marc D. Jacobson, Allen M.
Bernkrant and Neil H. Messinger. During fiscal 1999, the Compensation Committee
recommended to the Board, compensation for the Chairman of the Board and the
President and Chief Operating Officer, and approved compensation for the other
senior and executive officers. The Compensation Committee met 4 times during
fiscal 1999.
Mr. Bernkrant, Mr. Jacobson and Bruce D. Friesner make up the Board's
Audit Committee. The Audit Committee reviews the financial condition, operations
and records of the Company and BankUnited, reviews systems of internal control
with management and the independent auditors, and monitors the Company's and
BankUnited's adherence in accounting and financial reporting to generally
accepted accounting principles. The Audit Committee had 6 formal meetings in
fiscal 1999 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 1999. Each continuing director except Bruce
Friesner (due to illness) 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 Bruce Friesner (due to illness), 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 1999 fiscal year received a fee for each Board meeting. 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.
If any director of the Company or BankUnited had more than two
unexcused absences from Board meetings during the 1999 fiscal year, that
director thereafter received fees only for those meetings which he or she
attended. During the 1999 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 describes the compensation earned by the Chairman
of the Board, the President and other executive officers of the Company and
BankUnited whose total annual salary and bonus exceeded $100,000 during the 1999
fiscal year (the "named executive officers"). One of the columns in the
following table, "Long Term Compensation Awards - - Securities Underlying
Options/SARs," includes, for the 1999 fiscal year, options which were granted
over a period of seven years prior to the 1999 fiscal year, for services during
those years, which were amended as to their exercise price during the 1999
fiscal year ("repriced"), as well as options granted for the first time. The
repriced options amended existing options and were not granted as new options to
purchase additional shares. The repriced options are included in this column,
only because the Rules of the Securities and Exchange Commission (the "Rules")
require repriced options to be disclosed as if they were the grant of new
options in the year in which they are repriced. The repriced options were
previously reported in proxy statements and/or other public reports filed with
the Commission for the periods covering the original date of grant. See footnote
(A) for more information.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM COMPENSATION
--------------------------------
ANNUAL COMPENSATION AWARDS
----------------------------------------- --------------------------------
RESTRICTED SECURITIES
NAME AND PRINCIPAL FISCAL OTHER ANNUAL STOCK UNDERLYING ALL OTHER
POSITION YEAR SALARY($) BONUS($) COMPENSATION ($) AWARDS OPTIONS/SARS (#)(B) COMPENSATION ($)
----------------- ------ --------- ---------- ---------------- ---------- ------------------- ----------------
<S> <C> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 1999 $322,913 $13,000(L) $18,563 $245,425(D) 890,651(A)(C) $63,794(E)
Chairman of the Board and
Chief Executive Officer 1998 $294,583 $15,000(L) $10,217 $396,400(D) 317,310 $72,327
of the Company and
BankUnited 1997 $306,808(F) $93,000(L) - - - - 235,659 $74,541
MEHDI GHOMESHI 1999 $270,833 $ - - - - $357,438(G) 131,800(C) $26,311(H)
President and Chief
Operating Officer 1998 - - - - - - - - - - - -
of the Company and
BankUnited (1) 1997 - - - - - - - - - - - -
EARLINE G. FORD 1999 $142,000 $ 5,680(L) - - - - 231,607(A)(C) $16,860(J)
Executive Vice President
and Treasurer of 1998 $140,169 $ 7,100(L) - - $ 39,750(I) 52,810 $26,553
the Company and
BankUnited; Corporate 1997 $115,298 $26,000(L) - - - - 107,659 $23,243
Secretary of BankUnited
VINCENT F. POST, Jr. 1999 $102,324 - - - - - - 10,500(C) $ 175(K)
Executive Vice President,
Commercial Real Estate 1998 - - - - - - - - - - - -
Banking, of BankUnited (2)
1997 - - - - - - - - - - - -
</TABLE>
- ----------
#--Number of shares granted.
$--Dollar amounts.
(1)- Mr. Ghomeshi did not join the Company and BankUnited until December 1,
1998, and, therefore, his compensation is not reflective of a full fiscal
year. Mr. Camner served as President of the Company and BankUnited prior
to that date.
(2)- Mr. Post did not join BankUnited until December 7, 1998, and, therefore,
his compensation is not reflective of a full fiscal year.
(A) Includes for Alfred Camner, repriced options to purchase 706,250
shares, and for Earline Ford, repriced options to purchase 204,206
shares, which were granted over the preceding seven years and amended
as to
7
<PAGE>
exercise price during the 1999 fiscal year. These repriced options
amended existing options and were not granted as new options to
purchase additional shares. The repriced options are included only
because the Rules require repriced options to be disclosed as if they
were the grant of new options in the year in which they are repriced.
See "Report on Repricing of Options/SARs" for further detail.
(B) All information provided relates to option grants. The Company does
not grant stock appreciation rights ("SARs"). All amounts are
adjusted for stock splits. Amounts include options that were granted
as fees for service on the Boards of Directors of the Company and
BankUnited. The securities underlying options are shares of Class A
Common Stock, Class B Common Stock and Series B Preferred Stock. See
"Compensation Pursuant to Plans-Option/SAR Grants in Last Fiscal
Year," Note (B), for information on convertibility of Series B
Preferred Stock.
(C) The shares subject to options granted for fiscal 1999, which were not
repriced options, but new grants of options to purchase additional
shares, were 184,131, 131,800, 27,401 and 10,500 shares for Messrs.
Camner, Ghomeshi, Ford and Post, respectively.
(D) Includes awards of 25,000 and 20,000 restricted shares of Series B
Preferred Stock which were granted for the 1999 and 1998 fiscal years
respectively, and which vest over a period of five years from the
dates of grant. At the end of fiscal 1999, 38,334 of these shares
were still restricted and had a fair market value of approximately
$455,178. Dividends may be paid on the restricted stock.
(E) Reflects approximately $46,694 in insurance premiums, Company
contributions of approximately $3,107 to the 401(k) plan, and $13,993
in directors' fees.
(F) Includes stock with a fair market value of approximately $82,500 on
the date of grant.
(G) Includes total awards of 43,000 restricted shares of Class A Common
Stock, which vest over two to five years from the dates of grant. At
the end of fiscal 1999, 25,500 of these shares were still restricted
and had a fair market value of approximately $202,406. Dividends may
be paid on the restricted stock.
(H) Includes approximately $15,328 in life insurance premiums and $10,983
in directors' fees.
(I) Includes an award of 3,000 restricted shares of Class B Common Stock,
which vests over a three-year period from the date of grant. At the
end of fiscal 1999, 2,000 shares were still restricted and had a fair
market value of approximately $15,875. Dividends may be paid on the
restricted stock.
(J) Includes approximately $239 in life insurance premiums, Company
contributions of approximately $2,628 to the 401(k) plan, and $13,993
in directors' fees.
(K) Life insurance premiums.
(L) Reflects the fair market values of stock bonuses on the dates of
grant.
8
<PAGE>
COMPENSATION PURSUANT TO PLANS
1999 STOCK OPTION GRANTS. The following table provides details about
stock options granted to the named executive officers during the 1999 fiscal
year. The table includes stock options which were granted over a period of seven
years prior to the 1999 fiscal year, for services during those years, which were
amended as to their exercise price during the 1999 fiscal year. The repriced
options amended existing options and were not granted as new options to purchase
additional shares. The repriced options are included here, only because the
Rules require repriced options to be disclosed as if they were the grant of new
options in the year in which they are repriced. These repriced options were
previously reported in proxy statements and/or other public reports filed with
the Commission for the periods covering the original date of grant. In addition,
in accordance with the Rules, 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. The
actual gains, if any, on stock option exercises are dependent on the future
performance of the Class A Common Stock, overall stock market conditions, and
the named executive officer's continued employment with the Company and
BankUnited. As a result, the amounts reflected in this table may not necessarily
be achieved.
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
NEW GRANTS OF OPTIONS
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
--------------------------------------------------------------------- ----------------------------
PERCENT OF TOTAL
NO. OF SECURITIES OPTIONS/SARS EXERCISE
UNDERLYING GRANTED OR BASE
OPTIONS/SARS TO EMPLOYEES PRICE EXPIRATION
NAME GRANTED(#)(A) IN FISCAL YEAR(B) ($/SHARE) DATE 5%($)(B) 10%($)(B)
---- ----------------- ----------------- --------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 120,000(C)(D) 15.20% $ 10.845 10/14/2008 818,459 2,074,135
600(E) * $ 8.875 11/18/2008 3,349 8,487
600(E) * $ 7.031 2/17/2009 2,653 6,724
12,000(D) 1.52% $ 9.817 3/24/2009 74,086 187,749
600(E) * $ 9.063 5/26/2009 3,420 8,666
50,000(C)(D) 6.33% $ 13.183 5/27/2009 414,548 1,050,547
600(E) * $ 9.719 8/25/2009 3,667 9,294
MEHDI GHOMESHI 70,000(F)(G) 8.87% $ 7.125 12/15/2008 313,661 794,879
600(E) * $ 7.031 2/17/2009 2,653 6,724
10,000(G)(H) 1.27% $ 6.563 3/24/2009 41,271 104,589
600(E) * $ 9.063 5/26/2009 3,420 8,666
50,000(C)(G) 6.33% $ 8.813 5/27/2009 277,122 702,283
600(E) * $ 9.719 8/25/2009 3,667 9,294
EARLINE G. FORD 25,000(C)(G)(J) 3.17% $ 7.250 10/14/2008 113,987 288,866
600(E) * $ 8.875 11/18/2008 3,349 8,487
600(E) * $ 7.031 2/17/2009 2,653 6,724
600(E) * $ 9.063 5/26/2009 3,420 8,666
600(E) * $ 9.719 8/25/2009 3,667 9,294
VINCENT F. POST, JR. 5,000(F)(G) * $ 7.188 12//18/2008 22,601 57,275
2,000(G)(H) * $ 6.563 3/24/2009 8,254 20,918
3,500(C)(G) * $ 8.813 5/27/2009 19,399 49,160
</TABLE>
- ----------
#- -Number of shares underlying options granted.
$- -Dollar amounts.
*- -Less than 1%.
9
<PAGE>
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
GRANTS OF REPRICED OPTIONS (K)
<TABLE>
<CAPTION>
POTENTIAL REALIZABLE
VALUE AT ASSUMED ANNUAL
RATES OF STOCK PRICE
INDIVIDUAL GRANTS APPRECIATION FOR OPTION TERM
--------------------------------------------------------------------- ----------------------------
PERCENT OF TOTAL
NO. OF SECURITIES OPTIONS/SARS EXERCISE
UNDERLYING GRANTED OR BASE
OPTIONS/SARS TO EMPLOYEES PRICE EXPIRATION
NAME GRANTED(#)(A) IN FISCAL YEAR(B) ($/SHARE) DATE 5%($)(B) 10%($)(B)
---- ----------------- ----------------- --------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 79 * $ 7.250 8/19/2002 119 255
83 * $ 7.250 2/18/2003 144 313
68 * $ 7.250 5/24/2003 124 272
85 * $ 7.250 8/23/2003 165 363
93 * $ 7.250 11/22/2003 191 423
200 * $ 7.250 2/22/2004 433 967
269 * $ 7.250 5/25/2004 614 1,379
218 * $ 7.250 8/23/2005 628 1,459
182 * $ 7.250 11/27/2005 548 1,281
276 * $ 7.250 2/23/2006 864 2,034
261 * $ 7.250 5/24/2006 851 2,016
267 * $ 7.250 8/28/2006 906 2,163
324 * $ 7.250 11/14/2006 1,135 2,725
435 * $ 7.250 2/26/2007 1,591 3,849
435 * $ 7.250 5/12/2007 1,637 3,984
465 * $ 7.250 8/25/2007 1,823 4,473
510 * $ 7.250 11/17/2007 2,064 5,096
600 * $ 7.250 2/23/2008 2,518 6,265
600 * $ 7.250 5/20/2008 2,599 6,511
600 * $ 7.250 8/26/2008 2,691 6,794
43,700(J) 5.54% $ 7.250 12/11/2002 71,296 154,166
42,500(J) 5.38% $ 7.250 12/13/2003 88,211 195,739
57,500(J) 7.28% $ 7.250 1/29/2006 178,069 418,264
20,000(J) 2.53% $ 7.250 4/1/2006 63,660 150,228
45,000(J) 5.70% $ 7.250 7/18/2006 150,158 357,280
97,500(J) 12.35% $ 7.250 11/14/2006 341,586 819,972
60,000(J) 7.60% $ 7.250 5/12/2007 225,818 549,520
19,000(J) 2.41% $ 7.250 6/16/2007 72,532 177,000
150,000(D) 19.00% $ 10.845 10/27/2007 900,586 2,220,066
130,000(D) 16.47% $ 10.845 2/11/2008 812,805 2,020,760
35,000(D) 4.43% $ 10.845 3/16/2008 221,466 552,008
EARLINE G. FORD 79 * $ 7.250 8/19/2002 119 255
83 * $ 7.250 2/16/2003 144 312
68 * $ 7.250 5/24/2003 124 272
108 * $ 7.250 8/23/2003 210 461
92 * $ 7.250 l1/22/2003 189 419
234 * $ 7.250 2/22/2004 507 1,131
269 * $ 7.250 5/25/2004 614 1,379
218 * $ 7.250 8/23/2005 628 1,459
182 * $ 7.250 11/27/2005 548 1,281
276 * $ 7.250 2/27/2006 866 2,038
261 * $ 7.250 5/24/2006 851 2,016
267 * $ 7.250 8/28/2006 906 2,163
324 * $ 7.250 11/14/2006 1,135 2,725
435 * $ 7.250 2/26/2007 1,591 3,849
435 * $ 7.250 5/12/2007 1,637 3,984
465 * $ 7.250 8/25/2007 1,823 4,473
510 * $ 7.250 11/17/2007 2,064 5,096
600 * $ 7.250 2/23/2008 2,518 6,265
600 * $ 7.250 5/20/2008 2,599 6,511
600 * $ 7.250 8/26/2008 2,691 6,794
39,100(J) 4.95% $ 7.250 12/11/2002 63,791 137,938
35,500(J) 4.50% $ 7.250 12/13/2003 73,682 163,500
5,000(J) * $ 7.250 4/1/2006 15,915 37,557
7,500(J) * $ 7.250 7/18/2006 25,026 59,547
45,500(J) 5.76% $ 7.250 11/14/2006 159,407 382,654
12,000(J) 1.52% $ 7.250 5/12/2007 45,164 109,904
3,000(J) * $ 7.250 6/16/2007 11,452 27,947
45,500(J) 5.76% $ 7.250 10/27/2007 182,619 450,180
5,000(J) * $ 7.250 3/16/2008 21,150 52,717
</TABLE>
- ----------
#- -Number of shares underlying options granted.
$- -Dollar amounts.
*- -Less than 1%.
10
<PAGE>
(A) All information relates to option grants; the Company does not grant
SARs. The options have terms of 10 years from the original date of
grant but may terminate sooner upon termination of the holder's
employment or service with the Company or BankUnited. 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. Options may be immediately
vested and fully exercisable, or become so over a period of time.
Subject to certain conditions, options which vest over time become
fully vested and immediately exercisable upon the death or disability
of the optionee, or a change in control of the Company. In addition,
options granted to Alfred Camner and Mehdi Ghomeshi may become fully
vested and immediately exercisable upon termination without cause,
failure to extend the officer's employment agreement or in certain
other circumstances. Except as otherwise noted, options are fully
vested and immediately exercisable, and the underlying securities are
shares of Class A Common Stock.
(B) Does not include the options granted as partial payment of directors'
fees. See "Election of Directors-- Compensation of Directors" and Note
(E). Percentages for options to acquire Class B Common Stock were
calculated assuming that each underlying share of Class B Common Stock
was converted into one share of 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. The potential
realizable values of the options to acquire Class B Common Stock were
also calculated assuming conversion of the Class B Common Stock and
Series B Preferred Stock into Class A Common Stock. See "Report on
Repricing of Options/SARs," Note (B) for information on the fair market
value of the Series B Preferred Stock and Class B Common Stock.
(C) Options expiring on October 14, 2008 were granted to Messrs. Camner and
Ford as bonuses on October 14, 1998, for services rendered during the
prior 1998 fiscal year. Options expiring on May 27, 2009 were granted
to Messrs. Camner, Ghomeshi and Post , with vesting dependent upon the
share price of the Class A Common Stock meeting certain targets by the
end of each of the years 2000, 2001 and 2002. If share price targets
are not met, the options become fully vested and exercisable for the
total number of shares on the ninth anniversary of the grant date, if
the optionee is continuously employed or in service with the Company or
BankUnited through that date.
(D) The securities underlying these options are shares of Series B
Preferred Stock.
(E) These options were granted as payment of directors' fees. See "Election
of Directors--Compensation of Directors."
(F) These options were granted to encourage acceptance of employment with
the Company and BankUnited. Mr. Ghomeshi's option vests and becomes
exercisable for 50% of the underlying shares on December 1, 1999 and
for 25% on December 1 of each of the years 2000 and 2001. Mr. Post's
option vests and becomes exercisable pro-rata over a three-year period
from the date of grant.
(G) Except for these options, all options are transferrable if permitted by
the Compensation Committee, in its discretion.
(H) These options vest and become exercisable pro-rata over a five-year
period from the date of grant.
(I) Intentionally omitted.
(J) The securities underlying these options are shares of Class B Common
Stock.
(K) These options were granted over a period of seven years prior to the
1999 fiscal year, for services during those years, but were amended as
to their exercise price during the 1999 fiscal year. The repriced
options amended existing options and were not granted as new options to
purchase additional shares. The repriced options are included here,
only because the Rules require repriced options to be disclosed as if
they were the grant of new options in the year in which they are
repriced. These repriced options were previously disclosed in proxy
statements and/or other public reports filed with the Commission for
the periods covering the original date of grant. All terms of the
options are the same as the previous options, except that the exercise
price of the options was amended to reflect the fair market value of
the underlying stock. Option grants which expire at the same time and
have the same exercise and vesting characteristics have been combined.
11
<PAGE>
1999 STOCK OPTION EXERCISES. The named executive officers exercised
stock options during the 1999 fiscal year as follows:
AGGREGATED OPTION/SAR EXERCISES AND FISCAL YEAR-END OPTION/SAR VALUE (A)
<TABLE>
<CAPTION>
NUMBER OF
SECURITIES VALUE OF
UNDERLYING UNEXERCISED
UNEXERCISED IN-THE-MONEY
OPTIONS/SARS OPTIONS/SARS
AT SEPTEMBER 30, 1999(#)(A) AT SEPTEMBER 30, 1999 ($)(A)
SHARES ACQUIRED ----------------------------- ----------------------------
NAME ON EXERCISE(#) VALUE REALIZED ($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- --------- --------------- ------------------ ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
ALFRED R. CAMNER 104,581(B) $290,963 963,435 50,000 $1,211,516 - -
MEHDI GHOMESHI - - - - 1,800 130,000 $ 544 $70,625
EARLINE G. FORD 37,851 $189,178 398,987 - - $ 549,392 - -
VINCENT F. POST Jr. - - - - - - 10,500 - - $ 6,500
</TABLE>
- ----------
#--Number of shares. Includes shares of Series B Preferred Stock and Class B
Common Stock on an unconverted basis. See "Compensation Pursuant to
Plans--Option/SAR Grants in Last Fiscal Year," Note (B), for information on
the convertibility of the Class B Common Stock and the Series B Preferred
Stock.
$--Dollar amounts. See "Report on Repricing of Options/SARs," Note (B), for
information on the fair market value of the Class B Common Stock and the
Series B Preferred Stock.
(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.
EXECUTIVE EMPLOYMENT AGREEMENTS
During the 1999 fiscal year the Company and BankUnited had separate
employment agreements with Alfred R. Camner. In addition, the Company and
BankUnited had a joint employment agreement with Mehdi Ghomeshi, and change of
control agreements with Earline G. Ford and Vincent F. Post, Jr.
The employment agreements establish the duties and compensation of Mr.
Camner and Mr. Ghomeshi, 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 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 may be extended by BankUnited's Board.
At fiscal year end, Mr. Camner's employment agreements with the Company
and BankUnited provided in the aggregate for an annual salary of $325,000. The
salary may be increased by the Board of Directors upon review prior to each
anniversary date of the agreement. In addition, Mr. Camner may receive other
cash or stock compensation in such amounts as determined by the Board of
Directors from time to time. Mr. Camner is also 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. The severance payments and benefits to which Mr. Camner may become
entitled include amounts and benefits which are earned and unpaid at the time of
termination, and amounts and benefits which would be earned or paid for the
remaining 5 year term of the agreement, such as: earned and unpaid
12
<PAGE>
compensation and accrued benefits; continuation of insurance benefits for the
remaining term of the agreement; lump sum payments for the present value of the
total salary, pension benefits and employer defined plan contributions which
would have been earned for the remaining term of the agreement; and bonuses and
incentive compensation which would have been earned during the remaining term of
the agreement. At the election of the Company, Mr. Camner may also receive lump
sum payments for the value of stock options and shares granted as restricted
stock, in exchange for surrender of such options and shares. 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. 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. 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.
Mr. Ghomeshi's employment agreement has a thirty month term which is
automatically extended for additional 12 month periods unless either party
elects not to extend the agreement. The agreement provides for an annual salary,
which may be increased each year, but which may not be decreased for any reason.
At fiscal year end, this salary was $325,000. In addition, Mr. Ghomeshi will be
entitled to an annual merit-based cash bonus and an annual grant of options to
purchase shares of Class A Common Stock. Mr. Ghomeshi also received a grant of
restricted shares of Class A Common Stock and an option to purchase shares of
Class A Common Stock upon execution of the employment agreement. See "Summary
Compensation Table," "Option/SAR Grants in Last Fiscal Year" table and footnotes
thereto. Mr. Ghomeshi's employment agreement also provides for insurance and
other benefits.
The Company or BankUnited may terminate Mr. Ghomeshi's employment at
any time, in which event he will be entitled to receive severance payments and
benefits, unless termination is made for cause. If termination occurs upon a
change in control, the Company will pay Mr. Ghomeshi a lump sum cash payment
equal to three times the sum of his salary for the year in which termination
occurs, and his last annual bonus. In addition, Mr. Ghomeshi will have the right
to resign and receive any salary, bonus or benefits accrued prior to the date of
resignation and the implementation of any vested benefits; provided that he
remains employed by the acquiring entity for up to six months, if so requested
by the acquiring entity. Mr. Ghomeshi's employment agreement also contains a
"gross-up" provision designed to make Mr. Ghomeshi whole for any withholding and
excise taxes which may become payable in connection with termination payments.
The change of control agreements with Mrs. Ford and Mr. Post do not
affect BankUnited's employment rights or obligations with respect to the
executive officers prior to a change in control. Each change of control
agreement continues in effect until terminated by the parties or until the
termination of the officer's employment. 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. Mrs. Ford's
severance payments would include accrued compensation, a lump sum cash payment
equal to twice the aggregate of her highest salary rate and most recent cash
bonus and vested benefits. Mr. Post's severance payment would be a lump sum
payment consisting of a year's salary, bonus and other accrued compensation and
benefits. 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.
13
<PAGE>
REPORT ON REPRICING OF OPTIONS/SARS
Because the Company repriced options on October 14, 1998 (during the
1999 fiscal year), the Rules require that this proxy statement include a report
on all repricings of options DURING THE LAST 10 YEARS. The repriced options
amended existing options and were not granted as new options to purchase
additional shares. The repriced options are included here, because the Rules
require repriced options to be disclosed as the grant of new options. On October
14, 1998, the Company amended the exercise price of certain stock options which
had been awarded to directors, officers and employees during the preceding seven
years, for services rendered during those years. As a result of a decline in the
fair market value of the Company's Class A Common Stock, the options had
exercise prices in excess of the fair market value of the underlying stock and
were of significantly reduced value for the individuals to whom they had been
awarded as a major part of their compensation package and as an incentive to
remain in the Company's service. The new exercise price of the repriced options
was the fair market value of the underlying stock on the date of the repricing.
All other terms of the options remained the same.
During the last 10 years, the Company repriced options on October 14,
1998, September 3, 1998 and January 15, 1991. The following table lists all such
repriced options which were held by directors and executive officers. All of the
options repriced on September 3, 1998 were again repriced on October 14, 1998
and appear in the table twice, because the Rules require each repricing of the
same option to be listed. Options which appear twice are marked with an asterisk
and were not granted as new options to purchase additional shares.
TEN-YEAR OPTION/SAR REPRICINGS (A)
<TABLE>
<CAPTION>
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
DATE OF REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME REPRICING AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
---- --------- --------------- ------------ ------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Allen Bernkrant
Director of the Company 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
and BankUnited *10/14/98 82 $ 7.25 $ 9.298 $ 7.25 4
*10/14/98 135 $ 7.25 $ 9.298 $ 7.25 5
10/14/98 86 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 123 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 369 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 268 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 343 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 362 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 554 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 413 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 423 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 589 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 810 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 810 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 4,300 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 2,550 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 82 $ 9.298 $ 10.148 $ 9.298 4
* 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
* 9/3/98 25 $ 9.298 $ 10.00 $ 9.298 5
* 9/3/98 22 $ 9.298 $ 11.30 $ 9.298 5
* 9/3/98 20 $ 9.298 $ 12.05 $ 9.298 5
* 9/3/98 810 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 1,215 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 1,435 $ 9.298 $ 13.235 $ 9.298 9
* 9/3/98 1,650 $ 9.298 $ 13.493 $ 9.298 9
* 9/3/98 1,500 $ 9.298 $ 17.075 $ 9.298 10
* 9/3/98 1,050 $ 9.298 $ 10.975 $ 9.298 10
Lawrence H. Blum 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
Vice Chairman of the Board 10/14/98 575 $ 7.25 $ 8.0435 $ 7.25 4
and Director of the *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
Company and BankUnited *10/14/98 68 $ 7.25 $ 9.298 $ 7.25 5
10/14/98 85 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 62 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 1,000 $ 7.25 $ 7.50 $ 7.25 5
10/14/98 201 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 268 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 218 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 181 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 277 $ 7.25 $ 7.5875 $ 7.25 7
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
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
DATE OF REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME REPRICING AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
---- --------- --------------- ------------ ------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Lawrence H. Blum (cont'd) 10/14/98 260 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 267 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 10,324 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 12,795 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 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
Alfred R. Camner 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
Chairman of the Board, 10/14/98 43,700 $ 7.25 $ 8.0435 $ 7.25 4
Chief Executive Officer *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
and Director of the *10/14/98 68 $ 7.25 $ 9.298 $ 7.25 5
Company and BankUnited 10/14/98 85 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 93 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 42,500 $ 7.25 $ 7.50 $ 7.25 5
10/14/98 200 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 269 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 218 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 182 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 57,500 $ 7.25 $ 7.95 $ 7.25 7
10/14/98 276 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 10,000 $ 7.25 $ 8.1375 $ 7.25 8
10/14/98 10,000 $ 7.25 $ 8.9512 $ 7.25 8
10/14/98 261 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 45,000 $ 7.25 $ 8.00 $ 7.25 8
10/14/98 267 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 324 $ 7.25 $ 8.517 $ 7.25 8
10/14/98 97,500 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
10/14/98 60,000 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 19,000 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,575 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 10
*10/14/98 315,000(C) $ 10.8452 $ 13.909 $ 10.8452 9
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 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 19,000 $ 9.298 $ 9.5656 $ 9.298 9
* 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
* 9/3/98 150,000(C) $ 13.909 $ 19.125 $ 13.909 9
* 9/3/98 130,000(C) $ 13.909 $ 19.21 $ 13.909 9
* 9/3/98 35,000(C) $ 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
Diane DeLella *10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 8
Senior Vice President, 10/14/98 1,000 $ 7.25 $ 9.0536 $ 7.25 9
Chief Financial Officer *10/14/98 2,500 $ 7.25 $ 9.298 $ 7.25 9
and Controller *10/14/98 2,500 $ 7.25 $ 9.298 $ 7.25 10
of the Company and * 9/3/98 1,200 $ 9.298 $ 9.713 $ 9.298 8
BankUnited (1) * 9/3/98 2,500 $ 9.298 $ 13.113 $ 9.298 9
* 9/3/98 2,500 $ 9.298 $ 17.035 $ 9.298 10
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
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
DATE OF REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME REPRICING AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
---- --------- --------------- ------------ ------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C>
James A. Dougherty 10/14/98 186 $ 7.25 $ 8.025 $ 7.25 7
former Executive 10/14/98 181 $ 7.25 $ 8.275 $ 7.25 7
Vice President, 10/14/98 276 $ 7.25 $ 7.5875 $ 7.25 7
Chief Operating Officer 10/14/98 5,000 $ 7.25 $ 8.1375 $ 7.25 7
and Director of the 10/14/98 228 $ 7.25 $ 7.875 $ 7.25 8
Company and 10/14/98 7,500 $ 7.25 $ 7.275 $ 7.25 8
BankUnited (2) 10/14/98 266 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 19,324 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 12,435 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 36,575 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 3,000 $ 9.298 $ 9.5656 $ 9.298 9
* 9/3/98 465 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 32,000 $ 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
Earline G. Ford 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
Executive Vice President, 10/14/98 39,100 $ 7.25 $ 8.0435 $ 7.25 4
Treasurer and Director of *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
the Company and *10/14/98 90 $ 7.25 $ 9.298 $ 7.25 5
BankUnited; Corporate 10/14/98 86 $ 7.25 $ 8.80 $ 7.25 5
Secretary and Director 10/14/98 92 $ 7.25 $ 8.10 $ 7.25 5
of BankUnited 10/14/98 35,500 $ 7.25 $ 7.50 $ 7.25 5
10/14/98 234 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 269 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 218 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 182 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 276 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 5,000 $ 7.25 $ 8.1375 $ 7.25 8
10/14/98 261 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 7,500 $ 7.25 $ 7.275 $ 7.25 8
10/14/98 267 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 324 $ 7.25 $ 8.517 $ 7.25 8
10/14/98 45,500 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
10/14/98 12,000 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 53,500 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,575 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
* 9/3/98 22 $ 9.298 $ 11.30 $ 9.298 5
* 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 3,000 $ 9.298 $ 9.5656 $ 9.298 9
* 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
Bruce Friesner 10/14/98 110 $ 7.25 $ 7.675 $ 7.25 8
Director of the Company 10/14/98 324 $ 7.25 $ 8.517 $ 7.25 8
and BankUnited *10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 560 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 2,250 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,650 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 840 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 510 $ 9.298 $ 13.235 $ 9.298 9
* 9/3/98 900 $ 9.298 $ 13.493 $ 9.298 9
* 9/3/98 900 $ 9.298 $ 17.075 $ 9.298 10
* 9/3/98 750 $ 9.298 $ 10.975 $ 9.298 10
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
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
DATE OF REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME REPRICING AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
---- --------- --------------- ------------ ------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Patricia Frost 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
former Director of the *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
Company and *10/14/98 68 $ 7.25 $ 9.298 $ 7.25 5
BankUnited (3) 10/14/98 85 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 62 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 201 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 268 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 156 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 120 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 277 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 261 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 266 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 254 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 840 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 900 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 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 30 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 310 $ 9.298 $ 13.235 $ 9.298 9
* 9/3/98 500 $ 9.298 $ 13.493 $ 9.298 9
* 9/3/98 450 $ 9.298 $ 17.075 $ 9.298 10
* 9/3/98 450 $ 9.298 $ 10.975 $ 9.298 10
Steven Hayworth 1/15/91 8,500 $ 4.675 $ 6.25 $ 4.675 9
former Chief Operating
Officer and Director of
BankUnited (4)
Clifford A. Hope *10/14/98 27,500 $ 7.25 $ 9.298 $ 7.25 9
former Executive Vice *10/14/98 10,000 $ 7.25 $ 9.298 $ 7.25 10
President and Chief * 9/3/98 10,000 $ 9.298 $ 10.741 $ 9.298 9
Financial Officer of * 9/3/98 10,000 $ 9.298 $ 12.75 $ 9.298 9
the Company and * 9/3/98 7,500 $ 9.298 $ 14.088 $ 9.298 10
BankUnited (5) * 9/3/98 10,000 $ 9.298 $ 15.159 $ 9.298 10
Marc Jacobson 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
Director of the Company *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
and BankUnited *10/14/98 135 $ 7.25 $ 9.298 $ 7.25 5
10/14/98 86 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 123 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 369 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 268 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 343 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 362 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 554 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 413 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 657 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 589 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 810 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 685 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 3,375 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,950 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
* 9/3/98 25 $ 9.298 $ 10.000 $ 9.298 5
* 9/3/98 22 $ 9.298 $ 11.300 $ 9.298 5
* 9/3/98 20 $ 9.298 $ 12.050 $ 9.298 5
* 9/3/98 810 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 715 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 1,160 $ 9.298 $ 13.235 $ 9.298 9
* 9/3/98 1,500 $ 9.298 $ 13.493 $ 9.298 9
* 9/3/98 1,050 $ 9.298 $ 17.075 $ 9.298 10
* 9/3/98 900 $ 9.298 $ 10.975 $ 9.298 10
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
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
DATE OF REPRICED OR AMENDMENT AMENDMENT EXERCISE REPRICING OR
NAME REPRICING AMENDED (#) (A) ($) (B) ($) PRICE ($) AMENDMENT
---- --------- --------------- ------------ ------------ --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Marc Lipsitz 10/14/98 10,000 $ 7.25 $ 7.3125 $ 7.25 8
Corporate Secretary and 10/14/98 30 $ 7.25 $ 8.517 $ 7.25 8
Director of the Company *10/14/98 60 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 60 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 23,550 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 5,000 $ 7.25 $ 9.298 $ 7.25 10
*10/14/98 450 $ 7.25 $ 9.298 $ 7.25 10
*10/14/98 450 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 60 $ 9.298 $ 9.5357 $ 9.298 8
* 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
Neil Messinger 10/14/98 188 $ 7.25 $ 7.675 $ 7.25 8
Director of the Company 10/14/98 324 $ 7.25 $ 8.517 $ 7.25 8
and BankUnited *10/14/98 685 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 2,525 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,500 $ 7.25 $ 9.298 $ 9.298 10
* 9/3/98 685 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 715 $ 9.298 $ 10.741 $ 9.298 9
* 9/3/98 760 $ 9.298 $ 13.235 $ 9.298 9
* 9/3/98 1,050 $ 9.298 $ 13.493 $ 9.298 9
* 9/3/98 750 $ 9.298 $ 17.075 $ 9.298 10
* 9/3/98 750 $ 9.298 $ 10.975 $ 9.298 10
Donald Putnam 10/14/98 10,000 $ 7.25 $ 8.5563 $ 7.25 8
former Executive Vice *10/14/98 12,000 $ 7.25 $ 9.298 $ 7.25 9
President of BankUnited (6)* 9/3/98 12,000 $ 9.298 $ 12.750 $ 9.298 9
Anne Solloway 10/14/98 79 $ 7.25 $ 7.3422 $ 7.25 4
Director of the Company *10/14/98 83 $ 7.25 $ 9.298 $ 7.25 4
and BankUnited *10/14/98 68 $ 7.25 $ 9.298 $ 7.25 5
10/14/98 85 $ 7.25 $ 8.80 $ 7.25 5
10/14/98 93 $ 7.25 $ 8.10 $ 7.25 5
10/14/98 200 $ 7.25 $ 7.45 $ 7.25 5
10/14/98 269 $ 7.25 $ 7.45 $ 7.25 6
10/14/98 218 $ 7.25 $ 8.025 $ 7.25 7
10/14/98 181 $ 7.25 $ 8.275 $ 7.25 7
10/14/98 276 $ 7.25 $ 7.5875 $ 7.25 7
10/14/98 261 $ 7.25 $ 7.875 $ 7.25 8
10/14/98 267 $ 7.25 $ 7.675 $ 7.25 8
10/14/98 324 $ 7.25 $ 8.517 $ 7.25 8
*10/14/98 435 $ 7.25 $ 9.298 $ 7.25 8
10/14/98 435 $ 7.25 $ 9.0536 $ 7.25 9
*10/14/98 1,575 $ 7.25 $ 9.298 $ 7.25 9
*10/14/98 1,200 $ 7.25 $ 9.298 $ 7.25 10
* 9/3/98 83 $ 9.298 $ 10.148 $ 9.298 4
* 9/3/98 68 $ 9.298 $ 10.975 $ 9.298 5
* 9/3/98 435 $ 9.298 $ 9.5357 $ 9.298 8
* 9/3/98 465 $ 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
</TABLE>
- ----------
#-- Number of shares.
$-- Dollar amounts.
*-- This option appears in the table twice, as an option repriced on 9/3/98 and
again on 10/14/98. The repriced options amended existing options and were
not granted as new options to purchase additional shares. The Rules require
each repricing of the same option to be listed.
(1)-Until December 1999.
(2)-Until December 1998. This individual left the Company and BankUnited
effective February 1, 1999.
(3)-Until November 1998.
(4)-Until September 1993.
(5)-Until December 1998.
(6)-Until January 1999.
18
<PAGE>
(A) All information provided relates to option grants. The Company does not
grant stock appreciation rights. All securities are Class A Common
Stock or Class B Common Stock unless otherwise noted. Options for
shares of the same class, which also have the same market price, old
and new exercise price and remaining term, have been combined.
(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.
(C) These shares are Series B Preferred Stock, each of which is convertible
into 1.4959 shares of Class B Common Stock. Each share of Class B
Common Stock is convertible into one share of Class A Common Stock.
COMPENSATION COMMITTEE:
ALLEN BERNKRANT
MARC D. JACOBSON
NEIL H. MESSINGER, M.D..
19
<PAGE>
REPORT ON EXECUTIVE COMPENSATION
The following report of the Compensation Committee and the Board of
Directors regarding compensation of the Company's and BankUnited's executive
officers, including the Chief Executive Officer, for the fiscal year ended
September 30, 1999, is made pursuant to the rules of the Securities and Exchange
Commission. The Company and BankUnited shall be collectively referred to as the
"Company," for the purposes of this report. 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. The Compensation Committee and/or the Board of Directors
determine the compensation of the Company's executive officers. The Compensation
Committee recommends to the Board salaries, bonuses and stock options for Alfred
R. Camner and Mehdi Ghomeshi, which approves or rejects such recommendations,
and approves the salaries, bonuses and stock options for the other executive
officers.
The Company's executive compensation policies are intended to provide
incentives for achieving annual and long-term goals and to reward superior
corporate and individual performance. During fiscal 1999, compensation of the
Company's executive officers consisted of salary, bonuses and stock options
which were determined, and paid or granted, at varying times during the fiscal
year. The Board and the Compensation Committee determined compensation by
reviewing and considering factors such as prior performance, individual
contributions, responsibility and qualifications, industry and regulatory
standards, goals and periodic results. For executive officers hired during
fiscal 1999, past experience and accomplishments in the banking industry were
also important factors. An additional factor of importance in setting all forms
of compensation during the 1999 fiscal year was the restructuring undertaken by
the Company during the year. While the restructuring resulted in a substantial
one-time charge which caused a loss in the second fiscal quarter of 1999, the
Committee and the Board felt that the restructuring was a positive and necessary
step to adjust for interest rate trends and to improve BankUnited's future
profitability. The Board and the Committee recognized that the restructuring
charge was part of the implementation of BankUnited's strategy of moving away
from its prior role as a traditional wholesale savings and loan, which permitted
the building of a significant Florida franchise, into an asset-generating
community/commercial bank.
The weight allocated to the various factors considered in determining
salaries, bonuses and stock option grants was subjective and not calculated
pursuant to a specific formula.
The Board and the Compensation Committee adjusted the salaries of
executive officers already employed with the Company at the beginning of fiscal
1999, and set salaries for new executive officers as hired. The salary paid by
the Company is intended to set a base level of income which takes into account
the executive officer's responsibilities and qualifications, industry and
regulatory standards, prior Company performance and the individual's
contributions to that performance, and tenure with the Company. In setting
salaries, the Board and the Committee referred to and compared information on
employment agreements and compensation arrangements made by other financial
institutions and their executive officers, and gave significant consideration to
the guidelines provided by Office of Thrift Supervision regulations and
guidelines. The Board and the Committee considered the Company's overall
performance in fiscal 1998, including, without limitation, the Company's assets,
deposits, net income, and position as a significant banking franchise in
Florida, the growth of its capital, and its control of expenses, and evaluated
the contributions of each executive officer to those results. For new executive
officers, particular consideration was given to past experience,
responsibilities and accomplishments in the banking industry. The Board and the
Committee also considered the responsibilities and challenges which the
executive officer would have during the 1999 fiscal year, given the Company's
focus on increasing shareholder value by improving income, profitability and
efficiency, reducing operating expenses, expanding and establishing profitable
business lines and building customer relationships. Based on these
considerations, the Board and the Committee adjusted and set fiscal 1999 salary
levels which it believed reasonable and appropriate for the 1999 fiscal year.
20
<PAGE>
At the beginning of fiscal 1999, the Committee and the Board also
granted cash and stock bonuses and stock options to employees and executive
officers, for services rendered during the 1998 fiscal year. It is the Company's
policy to provide incentives based on the Company's results in light of the
competitive and other factors affecting the Company's operating environment, and
the Compensation Committee determines the amount of annual bonuses and stock
options by reviewing the Company's performance for the particular year. In
determining the amount of the incentives to be awarded for fiscal 1998, the
Compensation Committee and the Board considered the Company's overall 1998
performance as described above, in particular, the Company's assets, deposits,
net income, capital and position as a significant banking franchise in Florida,
and capital in fiscal 1998, and its control of expenses, in determining the
amount of bonuses and options which were granted.
The Committee and the Board also granted stock options during fiscal
1999 as a means of attracting experienced and high quality executives and
relating executives' compensation to the interests of the Company's
stockholders. Executive officers hired during the year were granted stock
options to purchase Class A Common Stock as an incentive for accepting
employment with the Company and/or BankUnited. The stock options were granted in
accordance with the Company's Statement of Policy for Stock Options Granted to
New Employees, which was approved by the Board (the "Statement of Policy"). As
provided by the Statement of Policy, the stock options were granted as soon as
practicable after commencement of employment, and the number of shares subject
to each option was determined by the Committee upon consideration of the
prospective executive's qualifications, experience and potential for adding
value to the Company's operations and results. The options granted expire 10
years from the date of grant, subject to earlier termination as provided in the
option agreements, and generally vest and become exercisable over a period of
three years.
The Board and the Committee also granted stock options during fiscal
1999 as a reward and incentive for specific accomplishments and goals. In
particular, the Board and the Committee granted options related to the
successful establishment of the medium term notes financing facility for
BankUnited and the sale and issuance of $200 million of such notes, BankUnited's
restructuring of its business segments, and the implementation of new strategies
and business lines designed to improve earnings and transform BankUnited from an
asset-acquiring savings and loan into an asset-generating, full-service
commercial bank. The Board and the Committee also granted options linked to the
market value of the Class A Common Stock. See "Option/SAR Grants in Last Fiscal
Year," footnote (C). During fiscal 1999, the Board and the Committee also acted
to restore the value of out-of-the-money stock options previously granted to the
Company's employees and executive officers as a major portion of their
compensation. See "Report on Repricing of Option/SARs."
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 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.
CHIEF EXECUTIVE OFFICER'S 1999 COMPENSATION. As with all of the
Company's executive officers, the compensation for Mr. Camner consists of base
salary, cash and stock bonuses and stock options. The Compensation Committee
recommended to the Board the Chief Executive Officer's salary, annual bonuses
and stock options, which were then approved by the Board of Directors. For
fiscal 1999, the Board and the Compensation Committee considered similar factors
in establishing salary, bonuses 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 Board
and the Compensation Committee was subjective and not pursuant to a specific
formula.
Corporate performance is especially important to the Compensation
Committee when determining the Chief Executive Officer's compensation. 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 to expand and become one of the
largest publicly held financial institutions headquartered in Florida. In
particular, Mr. Camner has overseen the implementation of a vision and strategy
for the Company to increase its presence in Florida as a significant banking
franchise, a process which has included, without limitation, increasing the
21
<PAGE>
Company's assets and deposits, developing a significant deposit franchise,
increasing capital, controlling expenses, opening new branches, introducing new
products and services, recruiting experienced management personnel, establishing
non-banking subsidiaries, pursuing in-market acquisitions, preparing for the
Year 2000 and, during fiscal 1999, restructuring BankUnited's business segments.
In fiscal 1999, Mr. Camner was granted cash and stock bonuses and stock options
for services rendered in fiscal 1998 which contributed significantly to the
Company's development as a significant Florida banking franchise. Mr. Camner's
salary was also adjusted in consideration of such performance.
The Internal Revenue Code of 1986, as amended, limits the deductibility
for federal income tax purposes of annual compensation paid by a publicly held
company to its chief executive officer and four other highest paid executives
for amounts greater than $1 million unless certain conditions are met. The
Company's compensation levels have been such that the provision has not affected
the determination of executive compensation to date. The Company currently is
monitoring its compensation levels and intends, if necessary, to make a
determination of whether and how it will comply.
COMPENSATION COMMITTEE: BOARD OF DIRECTORS:
ALLEN M. BERNKRANT ALLEN M. BERNKRANT
MARC D. JACOBSON LAWRENCE H. BLUM
NEIL H. MESSINGER, M.D. ALFRED R. CAMNER
EARLINE G. FORD
BRUCE D. FRIESNER
MARC D. JACOBSON
MARC LIPSITZ
NEIL H. MESSINGER, M.D.
A. FREDERICK SCHILD, M.D., F.A.C.S.
BARRY SHULMAN
ANNE W. SOLLOWAY
22
<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. See
"Certain Relationships and Related Transactions" below for information regarding
transactions with Head-Beckham, of which Marc Jacobson is an officer.
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 1999 fiscal year, the Company and BankUnited employed the
law firm of 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 1999
fiscal year, the Company paid Camner, Lipsitz and Poller approximately
$2,688,000 in legal fees from the Company allocable to mortgage loan closings,
foreclosures, litigation, corporate and other matters, and $303,000 allocable to
mergers and acquisitions. A substantial portion of the fees allocable to
mortgage loan closings are reimbursed by borrowers.
During the 1999 fiscal year, the Company paid Head-Beckham
AmerInsurance Agency, Inc., and/or its predecessor, Head-Beckham Insurance
Agency, Inc. ("Head-Beckham"), the sum of approximately $428,382 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 $41,125 represented the agency's commissions.
Marc Jacobson, a director of the Company and BankUnited, is a senior vice
president of Head-Beckham. The Company believes that the premiums paid for
policies obtained through Head-Beckham are comparable to those that would be
paid for policies obtained through unaffiliated agencies. The Company expects to
continue using the services of Head-Beckham.
During the 1997 fiscal year BankUnited entered into a lease for
property located in the West Miami Airport area, 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. The annual rent for the property is
$124,668, and the term of the lease is approximately six and one-half years. The
lease may be renewed for four additional three-year terms. The lease terms were
made at market rates comparable to those prevailing in the area for similar
transactions involving non-affiliated parties at the time that the lease was
made.
23
<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, the selected peer group (the "Peer Group") and the Dow Jones
Savings & Loan Index. The Company has determined, however, that the choice of
the Dow Jones Savings & Loan Index, the industry index used in previous years,
is not the best indicator of stockholder return among the Company's peers,
because that index consists of those savings and loans which have large market
capitalizations, and which are therefore not comparable to the Company. The
Company has selected the Peer Group to consist of the following financial
institutions: BankAtlantic Bancorp, Inc., Community Savings Bankshares, Federal
Trust Corporation, FFLC Bancorp, Inc., Fidelity Bankshares, Inc., Harbor Florida
Bancshares, Inc., Pointe Financial Corporation, Republic Security Financial
Corporation and Seacoast Banking Corporation. The Peer Group was chosen because
it consists of the publicly held financial institutions which are located in
Florida. The total stockholder return as reflected in the Dow Jones Index is
also represented on the following graph, because the Rules require both the new
and old index to be shown, if the graph uses a different index from that used
for the graph in the preceding year's proxy statement.
This graph assumes that $100 was invested on September 30, 1994 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.
CUMULATIVE TOTAL RETURN
--------------------------------------------
9/94 9/95 9/96 9/97 9/98 9/99
BANKUNITED FINANCIAL CORPORATION 100 120 124 210 176 127
PEER GROUP 100 129 137 244 146 138
NASDAQ STOCK MARKET (U.S.) 100 138 164 225 229 372
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.
24
<PAGE>
PROPOSAL TWO
APPROVAL OF AMENDMENT TO THE 1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN
The Board of Directors has approved and is submitting for stockholder
approval, an amendment to the Company's 1996 Plan to increase by 250,000 shares
the number of shares of Common Stock available for the grant of options. If the
amendment is approved, a total of 2,300,0000 shares of the Company's Common
Stock will be issuable for the grant of options, stock bonuses, stock awards,
restricted stock and restricted stock units under the 1996 Plan (collectively,
"Awards"). The amendment would change the numbers "1,350,000" and "2,050,000" in
the first sentence of Section 5(a) of the 1996 Plan, to "1,600,000" and
"2,300,000," respectively.
As of December 1, 1999, the Board had approved and granted under the
1996 Plan, Awards for 2,049,753 shares of Common Stock and 544,003 shares of
Series B Preferred Stock, of which Awards for 278,860 shares of Common Stock had
been forfeited, Awards for 1,684,021 shares of Common Stock and 407,000 shares
of Series B Preferred Stock were vested and options for 52,685 shares of Common
Stock and 40,000 shares of Series B Preferred Stock had been exercised. As of
December 1, 1999, there were 279,107 shares of Common Stock and 105,997 shares
of Series B Preferred Stock available for the grant of additional Awards 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.
Awards granted under the 1996 Plan enable the grantees to acquire or increase a
proprietary interest in the Company, strengthen the mutual interest of the
grantees and the Company's stockholders, and provide the grantees with annual
and long term performance incentives to create 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 number of shares
for which options 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 the number of shares of Common Stock remaining available under
the 1999 Plan will be insufficient to meet the Company's compensation
requirements in fiscal 2000 unless the proposed amendment is adopted.
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.
The 1996 Plan was first adopted by the Board in 1996 and approved by
the stockholders at the 1997 Annual Meeting. Over the approximately three-year
period from inception to December 1, 1999, the following persons and groups of
persons have received options under the 1996 Plan to purchase the shares shown
below:
<TABLE>
<CAPTION>
NAME AND POSITION NUMBER OF SHARES
----------------- ----------------
<S> <C>
Alfred R. Camner 81,369 Class A Common Stock
Chairman and Chief Executive Officer 176,500 Class B Common Stock
of the Company and BankUnited 497,000 Series B Preferred Stock
Mehdi Ghomeshi 206,800 Class A Common Stock
President and Chief Operating Officer
Earline G. Ford 17,569 Class A Common Stock
Executive Vice President and Treasurer 136,000 Class B Common Stock
of the Company and BankUnited
Vincent F. Post, Jr. 40,500 Class A Common Stock
Executive Vice President of BankUnited
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
NAME AND POSITION NUMBER OF SHARES
----------------- ----------------
<S> <C>
All current Executive Officers as a 658,547 Class A Common Stock
group (12 in number) 312,500 Class B Common Stock
497,000 Series B Preferred Stock
All current Non-Executive Officer 51,886 Class A Common Stock
Directors as a group (7 in number)
Nominees:
Marc Jacobson 11,309 Class A Common Stock
Anne Solloway 6,369 Class A Common Stock
Neil Messinger 8,619 Class A Common Stock
Marc Lipsitz 64,520 Class A Common Stock
Frederick Schild 1,600 Class A Common Stock
Barry Shulman 2,200 Class A Common Stock
All persons who have or will receive 5% of such options - -
Each other associate of such directors, executive officers - -
and nominees
All other current Employees 234,137 Class A Common Stock
(Including current officers who are
not executive officers of the Company)
</TABLE>
DESCRIPTION OF THE 1996 PLAN
The 1996 Plan was adopted by the Board of Directors on November 14,
1996, approved by the stockholders at the 1997 Annual Meeting, and amended by
the stockholders at the 1998 and 1999 Annual Meetings 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")
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
1,600,000 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 2,300,000 the Committee may reallocate the split between
the number of shares of Common Stock for which options may be granted and the
number of shares of Common Stock which may be issued in connection with stock
bonuses, stock awards, restricted stock and restricted
26
<PAGE>
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 1996 Plan. Shares issued under the 1996 Plan
may be either newly issued shares or treasury shares. On December 10, 1999 the
last reported sale price of the Class A Common Stock, the only publicly traded
stock issuable under the 1996 Plan, was $7.688 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.
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.
27
<PAGE>
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).
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.
28
<PAGE>
FEDERAL INCOME TAX IMPLICATIONS OF THE 1996 PLAN. The following is a
brief description of the Federal income tax consequences generally arising with
respect to Awards under the 1996 Plan.
The grant of an option will create no tax consequences for the
participant or the Company. A participant will not have taxable income upon
exercising an ISO (except that the alternative minimum tax may apply). Upon
exercising an option other than an ISO, the participant must generally recognize
ordinary income equal to the difference between the exercise price and fair
market value of the freely transferable and nonforfeitable Shares acquired on
the date of exercise.
Upon a disposition of shares acquired upon exercise of an ISO before
the end of the applicable ISO holding periods, the participant must generally
recognize ordinary income equal to the lesser of (i) the fair market value of
the Shares at the date of exercise of the ISO minus the exercise price or (ii)
the amount realized upon the disposition of the ISO shares minus the exercise
price. Otherwise, a participant's disposition of shares acquired upon the
exercise of an option generally will result in short-term or long-term capital
gain or loss measured by the difference between the sale price and the
participant's tax basis in such shares (generally, the exercise price plus any
amount previously recognized as ordinary income in connection with the exercise
of the option).
The Company generally will be entitled to a tax deduction equal to the
amount recognized as ordinary income by the participant in connection with
options. The Company generally is not entitled to a tax deduction relating to
amounts that represent a capital gain to a participant. Accordingly, the Company
will not be entitled to any tax deduction with respect to an ISO if the
participant holds the shares for the applicable ISO holding periods prior to
disposition of the shares.
With respect to Awards granted under the 1996 Plan that may be settled
in shares or other property that is either not restricted as to transferability
or not subject to a substantial risk of forfeiture, the participant must
generally recognize ordinary income equal to the cash or the fair market value
of shares or other property received. The Company generally will be entitled to
a deduction for the same amount. With respect to Awards involving shares or
other property that is restricted as to transferability and subject to a
substantial risk of forfeiture, the participant must generally recognize
ordinary income equal to the fair market value of the shares or other property
received at the first time the shares or other property becomes transferable or
not subject to a substantial risk of forfeiture, whichever occurs earlier. The
Company will be entitled to a deduction in an amount equal to the ordinary
income recognized by the participant. A participant may elect to be taxed at the
time of receipt of shares or other property rather than upon lapse of
restrictions on transferability or the substantial risk of forfeiture, but if
the participant subsequently forfeits such shares or other property he would not
be entitled to any tax deduction, including as a capital loss, for the value of
the shares or property on which he previously paid tax. The participant must
file such election with the Internal Revenue Service within 30 days of the
receipt of the shares or other property.
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.
29
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 1,
1999 (except where a different date is indicated) concerning (i) each director
of the Company; (ii) each of the named executive officers; (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 any class of the Company's voting securities,
according to filings by such persons with the Securities and Exchange
Commission. The table includes only those options which may be exercised within
60 days and, therefore, does not include certain options granted to executive
officers, which generally become exercisable over a period of three to five
years.
<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
PREFERRED STOCK COMMON STOCK COMMON STOCK
NAME AND ADDRESS STOCK(1) OUTSTANDING STOCK(1) OUTSTANDING STOCK(1) OUTSTANDING
---------------- ------------- ----------- ------------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS AND NAMED EXECUTIVE OFFICERS:
Allen M. Bernkrant 23,560 7.96% 37,860 7.67% 106,831 *
P.O. Box 56-1122 (2)(3)
Miami, FL 33256-1122
Lawrence H. Blum 23,560 7.96% 65,856 13.34% 231,500 1.29%
SunTrust Building - 10th Floor (2)(3)(4)
1 Southeast Third Avenue
Miami, FL 33131
Alfred R. Camner (5) 588,349 83.71% 1,705,637 90.52% 1,910,478 9.75%
255 Alhambra Circle (6)(7) (6)(7)(8) (2)(4)(6)
Coral Gables, FL 33134 (7)(8)
Earline G. Ford 5,000 1.69% 486,504 56.96% 525,997 2.86%
255 Alhambra Circle (8) (2)(4)(8)
Coral Gables, FL 33134
Bruce D. Friesner - - - - - - - - 31,176 *
5431 North 36th Court (2)(3)
Hollywood, FL 33021
Mehdi Ghomeshi - - - - - - - - 80,508 *
255 Alhambra Circle (2)(4)
Coral Gables, FL 33134
Marc D. Jacobson 10,000 3.38% 44,040 9.30% 149,431 *
3050 Biscayne Boulevard (2)(3)
Fourth Floor
Miami, FL 33137
Marc Lipsitz - - - - 500 * 40,218 *
550 Biltmore Way (2)(3)(4)
Suite 700
Coral Gables, FL 33134
</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
PREFERRED STOCK COMMON STOCK COMMON STOCK
NAME AND ADDRESS STOCK(1) OUTSTANDING STOCK(1) OUTSTANDING STOCK(1) OUTSTANDING
---------------- ------------- ----------- ------------- ----------- ------------ -----------
<S> <C> <C> <C> <C> <C> <C>
DIRECTORS AND NAMED EXECUTIVE OFFICERS:
Neil Messinger, M.D. - - - - - - - - 22,625 *
10801 S.W. 93rd Court (2)(3)
Miami, FL 33176
Vincent Post - - - - - - - - 2,266 *
255 Alhambra Circle (2)(4)
Coral Gables, FL 33134
A. Frederick Schild, M.D., F.A.C.S. - - - - - - - - 4,292 *
Department of Surgery (R-440) (2)
P.O. Box 012440
East Tower #3016
Miami, FL 33101
Barry Shulman 13,560 4.58% 20,284 4.24% 435,653 2.43%
4201 N.E. 12th Terrace (2)(3)
Ft. Lauderdale, FL 33334
Anne W. Solloway (5) - - - - 14,469 3.16% 30,886 *
8124 S.W. 87th Terrace (2)
Miami, FL 33143
ALL CURRENT DIRECTORS AND 664,029 94.48% 2,360,682 98.96% 3,563,047 17.42%
EXECUTIVE OFFICERS OF THE (6)(7) (6)(7)(8) (2)(3)(4)
COMPANY AND BANKUNITED (6)(7)(8)
AS A GROUP (19 PERSONS)
OTHER 5% OWNERS:
Phillip Frost, M.D. - - - - - - - - 1,152,874 6.45%
4400 Biscayne Boulevard (3)
Miami, Florida 33137
Charles B. Stuzin 16,560 5.60% 37,272 7.63% 147,922 *
550 Biltmore Way (3)
Suite 700
Coral Gables, Florida 33134
Harvey Miller 13,560 4.58% 20,354 4.25% 40,520 *
SunTrust Building - 10th Floor (3) (3)
1 Southeast Third Avenue
Miami, Florida 33131
Thomson, Horstmann & Bryant, Inc. (8) - - - - - - - - 1,027,500 5.75%
Park 80 West, Plaza Two
Saddle Brook, NJ 07663
</TABLE>
- ----------
* Less than 1% (FOOTNOTES FOLLOWING.)
31
<PAGE>
(1) The nature of the reported beneficial ownership is unshared voting and
investment power unless otherwise indicated in the footnotes to this
table. Beneficial ownership reported for each class shown includes
shares issuable upon conversion of shares of other classes of stock,
shares which may be acquired upon the exercise of options and shares
owned jointly or indirectly with or through a family member, trust,
corporation, partnership or other legal organization. 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.
(2) Includes shares of Class A Common Stock which may be acquired by the
following persons, in the amounts indicated, through the exercise of
options: Allen Bernkrant, 24,530; Lawrence Blum, 45,130; Alfred Camner,
22,929; Earline Ford, 12,009; Bruce Friesner, 10,679; Mehdi Ghomeshi,
36,800; Marc Jacobson, 20,265; Marc Lipsitz, 29,816; Neil Messinger,
11,507; Vincent Post, 1,666; Frederick Schild, 1,600; Barry Shulman,
2,200; Anne Solloway, 11,964; and current Directors and Executive
Officers as a group, 223,997.
(3) Includes joint or indirect ownership of shares by the following persons
in approximately the amounts indicated: Allen Bernkrant, 33,159;
Lawrence Blum, 59,273; Bruce Friesner, 1,087; Marc Jacobson, 12,582;
Marc Lipsitz, 4,150; Neil Messinger, 3,286; Barry Shulman, 22,117;
Phillip Frost, 822,889; Charles Stuzin, 6,373 and Harvey Miller, 8,262.
(4) Does not include shares of Class A Common Stock subject to options
which were granted on November 17, 1999, to the following executive
officers in the amounts indicated, as bonuses for services rendered
during the 1999 fiscal year: Lawrence Blum, 15,000; Alfred Camner,
75,000; Earline Ford, 10,000; Mehdi Ghomeshi, 75,000; Marc Lipsitz,
12,000; Vincent Post, 30,000 and other executive officers, 121,500.
(5) Alfred R. Camner is Anne W. Solloway's son and holds beneficial
ownership of Mrs. Solloway's shares through a durable power of
attorney. Such shares are counted only once in computing the aggregate
number of shares owned by current directors and executive officers as a
group.
(6) Includes 407,000 shares of Series B Preferred Stock which may be
acquired by Alfred Camner through the exercise of options.
(7) Series B Preferred Stock includes indirect ownership of 10,688 shares;
Class B Common Stock includes indirect ownership of 108,351 shares and
Class A Common Stock includes indirect ownership of 39,145 shares.
(8) Includes shares of Class B Common Stock which may be acquired by Alfred
Camner and Earline Ford, through the exercise of options to purchase
545,663 and 338,150 shares, respectively.
(9) Based on information as of September 30, 1999, which was received from
the stockholder.
32
<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, 1999, 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.
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 2000 fiscal year. PricewaterhouseCoopers
LLP audited the Company's financial statements for the 1999 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
2000 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 2, 2000 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 31, 1999
33
<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 26, 2000 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 I For Against
-------
Marc D. Jacobson |_| |_|
Anne W. Solloway |_| |_|
Neil H. Messinger |_| |_|
Marc Lipsitz |_| |_|
CLASS II For Against
--------
A. Frederick Schild |_| |_|
CLASS III For Against
---------
Barry Shulman |_| |_|
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 26, 2000 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 I For Against
-------
Marc D. Jacobson |_| |_|
Anne W. Solloway |_| |_|
Neil H. Messinger |_| |_|
Marc Lipsitz |_| |_|
CLASS II For Against
--------
A. Frederick Schild |_| |_|
CLASS III For Against
---------
Barry Shulman |_| |_|
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 26, 2000 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 I For Against
-------
Marc D. Jacobson |_| |_|
Anne W. Solloway |_| |_|
Neil H. Messinger |_| |_|
Marc Lipsitz |_| |_|
CLASS II For Against
--------
A. Frederick Schild |_| |_|
CLASS III For Against
---------
Barry Shulman |_| |_|
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.
B-3
<PAGE>
(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.
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.
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 1,600,000, 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 2,300,000 the Committee may reallocate
the split between the number of shares of Common Stock for which Options may be
granted and the number of shares of Common Stock which may be issued in
connection with Stock Bonuses, Stock Awards, Restricted Stock and Restricted
Stock Units in lieu of cash or other Stock-Based Awards. Additionally, subject
to adjustment as hereinafter provided the number of shares of Noncumulative
Convertible Preferred Stock, Series B for which Options may be granted and which
may be 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.
B-4
<PAGE>
(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 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.
(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.
B-5
<PAGE>
(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 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.
B-6
<PAGE>
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:
(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
B-7
<PAGE>
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 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
B-8
<PAGE>
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.
(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
B-9
<PAGE>
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.
B-10
