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 (set forth the
amount on which the filing fee is calculated and state how it was
determined):
------------------------------------------------
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:
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<PAGE>
[BankUnited logo]
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
FOR MONDAY, JANUARY 29, 2001
NOTICE IS HEREBY GIVEN that the 2001 Annual Meeting of Stockholders
(the "Annual Meeting") of BankUnited Financial Corporation (the "Company") will
be held at the JW Marriott Hotel, 1111 Brickell Avenue, Miami, Florida, on
Monday, January 29, 2001 at 11:00 a.m., for the following purposes:
(1) To elect three Class II directors to serve until 2004;
(2) To consider and vote upon approval of amendments to the
Company's 1996 Incentive Compensation and Stock Award Plan (the "1996
Plan") to (a) increase the total number of shares of Class A Common
Stock and Class B Common Stock (collectively, the "Common Stock") for
which awards may be granted under the 1996 Plan, by 850,000 shares to a
total of 3,150,000 shares, and (b) limit the number of shares of the
Company's stock for which awards in the form of stock options may be
granted to any one participant during a calendar year, to 450,000
shares of Stock, as defined under the 1996 Plan, plus the unused
portion of the previous year's limit; and
(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 13, 2000 as the record date (the "Record Date")
for the determination of the stockholders entitled to notice of and to vote at
the Annual Meeting.
By Order of the Board of Directors
MARC LIPSITZ
Secretary
Coral Gables, Florida
December 29, 2000
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 Monday, January 29, 2001
at the JW Marriott Hotel,
1111 Brickell Avenue, Miami, 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 29, 2001
(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 29, 2000.
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 three Class II directors as described below under "Election of
Directors;" (ii) FOR the approval of amendments to the Company's 1996 Incentive
Compensation and Stock Award Plan (the "1996 Plan") to (a) increase the total
number of shares of Class A Common Stock and Class B Common Stock (collectively,
the "Common Stock") for which awards may be granted under the 1996 Plan, by
850,000 shares to a total of 3,150,000 shares, and (b) limit the number of
shares of the Company's stock for which awards in the form of stock options may
be granted to any one participant during a calendar year, to 450,000 shares of
Stock, as defined under the 1996 Plan, plus the unused portion of the previous
year's limit, and (iii) to transact such other business as may properly come
before the Annual Meeting or any adjournment thereof.
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 2000 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 13, 2000 (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, 17,794,408 shares of Class A Common Stock, 446,262 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 696,117
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 any proposal. The presence, in person or by proxy, of shares
representing at least a majority of the votes entitled to be cast at the Annual
Meeting is necessary to constitute a quorum for the transaction of business at
the meeting.
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.
Under applicable Florida law and the provisions of the Company's
Articles of Incorporation and Bylaws, the directors nominated for election to
the Board, as described under Proposal One, "Election of Directors," must each
be elected by the affirmative vote of a plurality of the votes of the shares
present in person or by proxy at the Annual Meeting and entitled to vote. Votes
withheld for one or more nominees for director and broker non-votes will not be
considered affirmative votes for this purpose. Approval of the proposed
amendments to the 1996 Plan, described in Proposal Two, which would increase the
total number of shares of Common Stock for which awards may be granted under the
1996 Plan, and limit the number of shares of stock for which awards in the form
of stock options may be granted to any one participant during a calendar year,
each require the affirmative vote of a majority of the votes of the shares
present in person or by proxy at the Annual Meeting and entitled to vote. An
automated system administered by the Company's transfer agent will tabulate the
votes for the Annual Meeting.
Solicitation
The solicitation of proxies is being made by the Company, and the
Company will bear the cost of the solicitation of proxies. In addition to the
use of the U.S. mail, directors, officers and regular employees of the Company
may solicit proxies personally or by telephone, facsimile or telegram. Such
persons will receive no additional compensation. The Company will reimburse
custodians, brokerage houses, nominees and other fiduciaries for their
reasonable expenses in sending the proxy materials to their principals.
A copy of the Company's 2000 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, 2000 (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, 2000 and includes the consolidated
financial statements for the Company for the 2000 fiscal year.
2
<PAGE>
PROPOSAL ONE
ELECTION OF DIRECTORS
The Board of Directors will consist of 8 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.
In September 2000, Earline G. Ford resigned from the Board of Directors
of the Company and BankUnited, FSB ("BankUnited"), and in November 2000, Barry
Shulman, A. Frederick Schild and Bruce Friesner also resigned from both Boards.
The resignations reflect the Board's decision to reduce its size in order to
reduce costs and improve the efficiency of Board functions. At this Annual
Meeting, the term of the three directors serving in Class II will expire, and
the Board has nominated those directors for reelection to new terms ending in
2004. All three Class II nominees were elected by the stockholders at previous
annual meetings.
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 during which each director has served
as a director of the Company or 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.
<TABLE>
<CAPTION>
Information About the Nominees
------------------------------
The persons nominated as Class II directors are:
Name, Age, Principal Occupation, Director
Directorships and Business Experience Since
------------------------------------- --------
<S> <C>
Lawrence H. Blum: Age 57 1984
Director and Vice Chairman of the Board of the Company (1993 to
present) and BankUnited (1984 to present); Managing Director (1992 to
present) and partner (1974 to present) of Rachlin, Cohen & Holtz,
certified public accountants.
</TABLE>
(Table continued on next page.)
3
<PAGE>
<TABLE>
<CAPTION>
Name, Age, Principal Occupation, Director
Directorships and Business Experience Since
------------------------------------- --------
<S> <C> <C>
Alfred R. Camner (1): Age 56 1984
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).
Mehdi Ghomeshi: Age 44 1998
Director, President and Chief Operating Officer of the Company and
BankUnited (December 1998 to present); Market President of NationsBank,
South Florida (January 1998 to December 1998); President and Chief
Operating Officer of Barnett Bank, South Florida (1996 to 1998);
Director of Special Assets and Risk Management, Barnett Bank, Inc.
(1995 to 1996); Executive Vice President, Commercial Real Estate,
Barnett Bank of South Florida (1993 to 1995).
</TABLE>
<TABLE>
<CAPTION>
Information About the Continuing Members of the Board of Directors
------------------------------------------------------------------
The directors who are not currently standing for election are:
Term as
Name, Age, Principal Occupation, Director Director
Directorships and Business Experience Since Expires
------------------------------------- -------- --------
Current Class I Directors:
--------------------------
<S> <C> <C>
Marc D. Jacobson: Age 58 1984 2003
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 85 1985 2003
Director of the Company (1993 to present) and BankUnited (1985 to
present); Private investor in Miami, Florida.
Neil H. Messinger, M.D.: Age 62 1996 2003
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.
</TABLE>
(Table continued on next page.)
4
<PAGE>
<TABLE>
<CAPTION>
Term as
Name, Age, Principal Occupation, Director Director
Directorships and Business Experience Since Expires
------------------------------------- -------- --------
<S> <C> <C>
Marc Lipsitz: Age 59 1996 2003
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).
Current Class III Directors:
---------------------------
Allen M. Bernkrant: Age 70 1985 2002
Director of the Company (1993 to present) and BankUnited (1985 to
present); Private investor in Miami, Florida (1990 to present).
</TABLE>
-----------------
(1) Anne W. Solloway is Alfred R. Camner's mother.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF ALL OF THE
NOMINEES FOR ELECTION AS DIRECTORS.
Meetings and Committees of the Board of Directors
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. Alfred R. Camner, Mehdi Ghomeshi, Lawrence
Blum and Marc Lipsitz act as the Executive Committee of the Company's Board and,
except for Marc Lipsitz, as the Executive Committee of BankUnited's Board.
During the 2000 fiscal year, the Executive Committee of the Company and Bank met
as required.
During fiscal 2000, the Compensation Committee recommended compensation
for the Chairman of the Board and the President and Chief Operating Officer to
the Board, and approved compensation for the other senior and executive
officers. 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.
The Audit Committee's responsibility is to monitor and oversee
management's functions with regard to responsibility for the Company's internal
controls and the financial reporting process and the independent accountants'
performance of an independent audit of the Company's consolidated financial
statements in accordance with generally accepted auditing standards and issuance
of a report thereon. Mr. Bernkrant, Mr. Jacobson and Dr. Messinger make up the
Board's Audit Committee. Dr. Messinger was elected in December 2000 to replace
Bruce Friesner, who served as a member of the Audit Committee during the 2000
fiscal year, prior to his resignation in November 2000. The members of the Audit
Committee are not officers or employees of the Company or its subsidiaries, and
do not have a relationship which, in the opinion of the Company's Board of
Directors, would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director. The members of the Audit Committee are
5
<PAGE>
independent directors, as defined in Rule 4200(a)(14) of the National
Association of Securities Dealers' ("NASD's") listing standards, as modified or
supplemented.
A copy of the written charter of the Audit Committee, which has been
adopted by the Company's Board of Directors, is attached as Exhibit A to this
Proxy Statement. The Audit Committee had 7 formal meetings in fiscal 2000 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 2000. Each continuing director and each
current director nominated for reelection attended at least 75% of all meetings
of the Company's Board and at least 75% of all meetings of BankUnited's Board
during the period in which the director was a member. Each director, except Marc
Jacobson, who, due to illness, missed one of the three Compensation Committee
meetings held during the year, 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 2000 fiscal year received a fee for each Board meeting. Directors who
were members of both the Company and BankUnited's Boards received a fee of
$1,400 cash and, except for Alfred Camner, Chairman of the Board and Chief
Executive Officer, and Mehdi Ghomeshi, President and Chief Operating Officer, an
option to purchase 500 shares of Class A Common Stock for each joint meeting of
both Boards. If the director was a member of only the Board of the Company or
the Board of BankUnited, but not both, or if the meeting was a meeting of the
Board of the Company or the Board of BankUnited, but not both, the fee paid
consisted of $1,300 cash and an option to purchase 500 shares of Class A Common
Stock. Neither Alfred Camner nor Mehdi Ghomeshi received any stock options for
directors fees during fiscal 2000. If any director of the Company or BankUnited
had more than two unexcused absences from Board meetings during the 2000 fiscal
year, that director thereafter received fees only for those meetings which he or
she attended.
During the 2000 fiscal year, non-employee directors who were members of
a Board committee or of BankUnited's Community Reinvestment Act Committee
received an additional fee per committee meeting attended. From October 1999 to
March 2000, the fee was $1,300 cash and an option to purchase 500 shares of
Class A Common Stock for each committee meeting attended. Beginning in March
2000, the fee for committee meetings was changed to $600 per hour, with a
minimum fee of $300 for one-half-hour or less, and an option to purchase 150
shares of the Company's Class A Common Stock.
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 $100,000 during the 2000
fiscal year (the "named executive officers").
<TABLE>
<CAPTION>
Summary Compensation Table
Long Term Compensation
------------------------------------
Annual Compensation Awards
---------------------------------------------- ------------------------------------
Securities All Other
Name and Principal Fiscal Other Annual Restricted Stock Underlying Compensation
Position Year Salary($) Bonus($)(A) Compensation ($) Awards Options/SARs(#)(B) ($)
--------------------------- ---- --------- ------------- ---------------- ------------------------------------ -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Alfred R. Camner 2000 $366,667 $300,000 $16,500 - - 75,000 $88,280(E)
Chairman of the Board and
Chief Executive Officer 1999 $322,913 $ 13,000 $18,563 $ 245,425(C) 890,651(D) $63,794
of the Company and
BankUnited 1998 $294,583 $ 15,000 $10,217 $ 396,400(C) 317,310 $72,327
Mehdi Ghomeshi 2000 $366,667 $200,000 - - - - 75,000 $46,769(H)
President and Chief
Operating Officer 1999 $270,833(F) - - - - $ 357,438(G) 131,800 $26,311
of the Company and
BankUnited 1998 - - - - - - - - - - - -
Michael Clutter 2000 $133,542 $ 40,000 - - - - 30,000 $ 8,961(I)
Executive Vice President,
Credit Policy and Risk 1999 $ 61,846(F) - - - - - - 11,500 - -
Management, of
BankUnited 1998 - - - - - - - - - - - -
Janette L. Davis 2000 $140,000 $ 60,000 - - - - 30,000 $10,463(I)
Executive Vice President,
Retail Banking of 1999 $ 79,615(F) - - - - - - 11,500 - -
BankUnited
1998 - - - - - - - - - - - -
Vincent F. Post, Jr. 2000 $141,667 $ 50,000 - - - - 30,000 $10,463(I)
Executive Vice President,
Corporate and Commercial 1999 $102,324(F) - - - - - - 10,500 $ 175
Real Estate Banking of
BankUnited 1998 - - - - - - - - - - - -
--------------------------
Patricia I. Chong 2000 $138,750(J) $ 45,000 - - - - 30,000 $10,518(I)
Former Executive Vice
President, Professional/ 1999 $ 86,971(J) - - - - - - 11,500 - -
Executive and Small
Business Banking, 1998 - - - - - - - - - - - -
of BankUnited (J)
</TABLE>
#- Number of shares granted.
$- Dollar amounts.
(A) Stock bonuses are included at their fair market value on the dates of grant.
7
<PAGE>
(B) All information provided relates to option grants. The Company does not
grant stock appreciation rights ("SARs"). All amounts are adjusted for
stock splits. The securities underlying options are shares of Class A
Common Stock, Class B Common Stock and Series B Preferred Stock. Each
share of Series B Preferred Stock is convertible into 1.4959 shares of
Class B Common Stock, and each share of Class B Common Stock is
convertible into one share of Class A Common Stock.
(C) 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 2000, 30,001 of these shares were still
restricted and had a fair market value of approximately $330,791.
Dividends may be paid on the restricted stock.
(D) Includes repriced options to purchase 706,250 shares, which were
granted over the preceding seven years and amended as to 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 the repriced options to be disclosed as if they were the grant
of new options in the year in which they were repriced.
(E) Reflects approximately $60,671 in insurance premiums, Company
contributions of approximately $10,809 to the 401(k) Profit Sharing
Plan, and $16,800 in cash directors' fees.
(F) Messrs. Ghomeshi, Clutter, Davis and Post joined the Company and/or
BankUnited during the 1999 fiscal year, and their fiscal 1999
compensation does not reflect a full year.
(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 2000, 6,400 of these shares were still restricted and
had a fair market value of approximately $47,040. Dividends may be paid
on the restricted stock.
(H) Includes approximately $15,119 in life insurance premiums, Company
contributions of approximately $14,850 to the 401(k) Profit Sharing
Plan and $16,800 in cash directors' fees.
(I) Reflects Company contributions to the 401(k) Profit-Sharing Plan.
(J) Patricia Chong joined BankUnited during the 1999 fiscal year and her
fiscal 1999 compensation does not reflect a full year. Ms. Chong's
employment with the Company terminated in September 2000, and
information on her compensation is reported here as required by the
rules of the Securities and Exchange Commission (the "Rules").
8
<PAGE>
Compensation Pursuant to Plans
2000 Stock Option Grants. The following table provides details about
stock options granted to the named executive officers during the 2000 fiscal
year. In addition, in accordance with the Rules, the table describes the
hypothetical gains that would exist for the respective options based on assumed
rates of annual compound stock appreciation of 5% and 10% from the date of grant
to the end of the option term. These hypothetical gains are based on assumed
rates of appreciation. The actual gains, if any, on stock option exercises are
dependent on the future performance of the Class A Common Stock, overall stock
market conditions, and the named executive officer's continued employment with
the Company and BankUnited. As a result, the amounts reflected in this table may
not necessarily be achieved.
<TABLE>
<CAPTION>
OPTION/SAR GRANTS IN LAST FISCAL YEAR (A)
Potential Realizable
Value at Assumed Annual
Rates of Stock Price
Individual Grants Appreciation for Option Term
------------------------------------------------------------------- ----------------------------
Percent of Total
No. of Securities Options/SARs Exercise
Underlying Granted or Base
Options/SARs to Employees Price Expiration
Name Granted(#) in Fiscal Year ($/Share) Date 5%($) 10%($)
----------------- ------------------- ---------------- ---------- ------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Alfred R. Camner 75,000 12.57% $ 8.625 11/17/2009 406,816 1,030,952
Mehdi Ghomeshi 75,000 12.57% $ 8.625 11/17/2009 406,816 1,030,952
Michael Clutter 30,000 5.03% $ 8.625 11/17/2009 162,726 412,381
Janette L. Davis 30,000 5.03% $ 8.625 11/17/2009 162,726 412,381
Vincent F. Post, Jr. 30,000 5.03% $ 8.625 11/17/2009 162,726 412,381
--------------------
Patricia I. Chong(B) 30,000 5.03% $ 8.625 11/17/2009 162,726 412,381
#- Number of shares underlying options granted.
$- Dollar amounts.
*- Less than 1%.
</TABLE>
(A) All information relates to option grants; the Company does not grant
SARs. The options permit the holder to purchase the specified number of
shares of Class A Common Stock at an exercise price which is at least
the fair market value of the Class A Common Stock on the date of grant.
The options have terms of 10 years from the original date of grant but
may terminate sooner upon termination of the holder's employment or
service with the Company or BankUnited. The options vest and become
exercisable over a period of five years from the date of grant, but
become fully vested and immediately exercisable upon the death or
disability of the optionee, or a change in control of the Company. In
addition, pursuant to their employment agreements with the Company and
BankUnited, options granted to Alfred Camner and Mehdi Ghomeshi may
become fully vested and immediately exercisable upon termination by the
Company without cause, the Company's failure to extend the officer's
employment agreement or in certain other circumstances. The options
were granted in the 2000 fiscal year as bonuses for services rendered
during the 1999 fiscal year. Options are transferable by will or the
laws of descent or distribution, pursuant to the designation of a
beneficiary, or as approved by the Compensation Committee of the
Company in its sole discretion.
(B) Patricia Chong's employment with the Company terminated in September
2000, and information on her compensation is reported here pursuant to
the Rules. Ms. Chong's options expired in October 2000.
9
<PAGE>
2000 Stock Option Exercises. The named executive officers exercised
stock options during the 2000 fiscal year as follows:
<TABLE>
<CAPTION>
Aggregated Option/SAR Exercises and Fiscal Year-End Option/SAR Value (A)
Number of
Securities Value of
Underlying Unexercised
Unexercised In-the-Money
Options/SARs Options/SARs
at September 30, 2000(#)(A) at September 30,2000($)(A)
Shares Acquired ----------------------------- --------------------------
Name On Exercise(#) Value Realized ($) Exercisable Unexercisable Exercisable Unexercisable
---- ----------------- ------------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Alfred R. Camner 238 $590 963,195 125,000 $556,140 - -
Mehdi Ghomeshi - - - - 43,800 163,000 $7,665 $18,167
Michael Clutter - - - - 2,667 38,833 $1,825 $4,300
Janette L. Davis - - - - 3,100 38,400 $1,825 $4,300
Vincent F. Post, Jr. - - - - 3,233 37,267 $638 $1,925
--------------------
Patricia I. Chong (B) - - - - 3,100 38,400 $1,825 $4,300
#- Number of shares. Includes shares of Series B Preferred Stock and Class B
Common Stock on an unconverted basis. See "Compensation Pursuant to Plans-
-Summary Compensation Table," Note (B), for information on the
convertibility of the Class B Common Stock and the Series B Preferred Stock.
$- Dollar amounts. The fair market value of the Class B Common Stock is equal
to the market price of the Class A Common Stock, which is publicly traded,
and the fair market value of the Series B Preferred Stock is equal to 1.4959
times the market price of the Class A Common Stock.
</TABLE>
(A) All information provided relates to options. The Company does not grant
SARs.
(B) Patricia Chong's employment with the Company terminated in September
2000, and information on her compensation is reported here pursuant to
the Rules. Ms. Chong's options expired in October 2000.
Executive Employment Agreements
During the 2000 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 Michael Clutter, Janette Davis, Vincent Post, Jr. and
Patricia Chong.
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.
Mr. Camner's employment agreements with the Company and BankUnited
provide in the aggregate for an annual salary which may be increased by the
Board of Directors upon review prior to each anniversary date of the agreement.
At fiscal year end, Mr. Camner's annual salary pursuant to the agreements was
$375,000. This salary was increased to $425,000 effective December 1, 2000. 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. See "Report
on Executive Compensation" for additional information on Mr. Camner's
compensation. 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.
10
<PAGE>
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 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. 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, Mr. Ghomeshi's salary was $375,000. This salary was
increased to $425,000 effective December 1, 2000. 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 agreement with Ms. Chong is no longer in effect
due to her resignation. The change of control agreements with Ms. Davis, Mr.
Post and Mr. Clutter 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. For each executive officer, the
11
<PAGE>
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.
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, 2000, is made pursuant to the rules of the Securities and Exchange
Commission. The Company and/or BankUnited shall be 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, the Executive Committee and/or the
Board of Directors determine the compensation of the Company's executive
officers. The Compensation Committee recommends salaries, bonuses and stock
options for Alfred R. Camner and Mehdi Ghomeshi to the Board, and the Board
approves or rejects such recommendations. The Compensation Committee also
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 2000, compensation of the
Company's executive officers consisted of salary, bonuses and stock options. The
Board and the Compensation Committee determined compensation by reviewing and
considering the accomplishment of a combination of organizational, individual,
financial, operational and customer satisfaction objectives. Criteria used in
determining and awarding incentive compensation for the 2000 fiscal year were
set forth in a compensation policy for executive officers approved by the
Compensation Committee in December 1999.
The Board, the Compensation Committee and/or the Executive Committee
adjusted the salaries of executive officers already employed with the Company,
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 with 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 1999,
including, without limitation, the Company's restructuring, income and earnings,
control of expenses and development and expansion of its product lines, market
areas, strategies and customer relationships. The Board and the Committee
evaluated the contributions of each executive officer to those results. For
newly hired 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 each executive officer would have during the 2000 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 2000 salary levels which it believed reasonable and appropriate for the
2000 fiscal year.
At the beginning of fiscal 2000, prior to adopting the new compensation
policy, the Committee and the Board also granted cash and stock bonuses and
stock options to employees and executive officers, for services rendered during
the 1999 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 determined
the amount of annual bonuses and stock options for fiscal 1999 by reviewing the
Company's performance for that year. In determining the amount of the incentives
to be awarded for fiscal 1999, the Compensation Committee and the Board
considered the Company's overall 1999 performance, in particular, the Company's
restructuring and progress towards developing into a full service banking
institution, in determining the amount of bonuses and options which were
granted.
12
<PAGE>
The Committee and the Board also granted stock options during fiscal
2000 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 previously 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.
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.
Under the new compensation policy adopted in December 1999, the
incentive award opportunities for each management and non-management position
for the 2000 fiscal year were established based on a multi-tiered participation
level; job descriptions determined the tier level of each plan participant.
Threshold, goal, and maximum incentive award amounts were developed based on the
Company's strategic plan and priorities established by executive management and
the Company's Board of Directors. The calculation of actual awards to
individuals was based on criteria tied to specific organizational, departmental
or individual performance goals and objectives. Annual incentive amounts were
tied to an overall assessment of individual performance, with some adjustment
based on individual/departmental or bank-wide performance for certain managers.
The Committee identified a number of performance measures to be used
either individually or in combination, and the factors used to evaluate the
Company's and individual performance in fiscal year 2000 included, on a
Company-wide basis, consolidated net income, and, on a divisional, departmental
and/or individual basis, non-interest revenue/income, net non-interest expense
control, deposit growth, loan production, customer satisfaction, customer
retention, sales and referral revenue, and earnings per share. In general,
target goals are set when the Chief Executive Officer and Chief Operating
Officer recommend performance targets for the Company to the Board of Directors,
and each executive officer and senior manager aligns his or her business goals
with corporate objectives. Actual awards are determined when the Company's
Compensation Committee approves recommendations relative to the Company's
performance.
Chief Executive Officer's Fiscal 2000 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. At the beginning of fiscal
2000, Mr. Camner was granted cash and stock bonuses and stock options for
services rendered in fiscal 1999 which contributed significantly to the
Company's restructuring and development into a full-service banking institution
and significant Florida banking franchise. Mr. Camner's salary was also adjusted
in consideration of such performance.The Compensation Committee recommended the
Chief Executive Officer's salary and the methodology for determining the Chief
Executive Officer's annual bonuses and stock options to the Board and these
recommendations were then approved by the Board of Directors. For fiscal 2000,
the Board and the Compensation Committee considered similar factors in setting
Mr. Camner's salary, and in setting criteria for bonuses and stock option awards
to Mr. Camner, as for other executive officers, as discussed above. The
measuring factors for criteria set by the Compensation Committee for determining
Mr. Camner's bonus for the 2000 fiscal year were net income and/or earnings per
share.
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 its 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. However, the
Company closely monitors its compensation levels to determine whether any action
becomes necessary or appropriate to comply with the limitations set by the Code.
The Board and the Committee reserve the right to use good independent judgment,
on a case by case basis, to make nondeductible awards to reward employees for
excellent service or to recruit new employees while taking into consideration
the financial effects such action may have on the Company.
13
<PAGE>
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
Marc D. Jacobson
Marc Lipsitz
EXECUTIVE COMMITTEE: Neil H. Messinger, M.D.
Lawrence H Blum Anne W. Solloway
Alfred R. Camner
Mehdi Ghomeshi
Marc Lipsitz
Report of the Audit Committee
The following report of the Audit Committee is made pursuant to the
rules of the Securities and Exchange Commission. 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.
In this context, the Audit Committee has met and held discussions with
management and the independent accountants. Management represented to the Audit
Committee that the Company's consolidated financial statements were prepared in
accordance with generally accepted accounting principles and the Audit Committee
has reviewed and discussed the consolidated financial statements with management
and the independent accountants. The Audit Committee discussed with the
independent accountants matters required to be discussed by Statement on
Auditing Standards No. 61 (Communication with Audit Committees).
The Audit Committee discussed with the Company's internal and
independent auditors the overall scope and plans for their respective audits.
The Audit Committee meets with the internal and independent auditors, with and
without management present, to discuss the results of their examinations, the
evaluations of the Company's internal controls, and the overall quality of the
Company's financial reporting.
The Audit Committee has received the written disclosures and the letter
from the independent accountants required by Independence Standards Board
Standard No. 1 (Independence Standards Board Standards No. 1, Independence
Discussions with Audit Committees), as may be modified or supplemented, and has
discussed with the independent accountant the independent accountant's
independence.
Based on the review and discussions referred to above, the Audit
Committee recommended to the Board of Directors that the audited financial
statements for the fiscal year ended September 30, 2000 be included in the
Company's Annual Report on Form 10-K for the last fiscal year, for filing with
the Securities and Exchange Commission.
AUDIT COMMITTEE
Allen M. Bernkrant
Bruce Friesner (1)
Marc D. Jacobson
(1) Bruce Friesner resigned from the Audit Committee in November 2000.
14
<PAGE>
Compensation Committee Interlocks and Insider Participation
As described above under "Election of Directors--Meetings and
Committees of the Board of Directors," the current members of the Compensation
Committee are Allen M. Bernkrant, Marc D. Jacobson and Neil H. Messinger. 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 2000 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 2000
fiscal year, the Company paid Camner, Lipsitz and Poller approximately $2.5
million in legal fees from the Company allocable to mortgage loan closings,
foreclosures, litigation, corporate and other matters. A substantial portion of
the fees allocable to mortgage loan closings are reimbursed by borrowers.
During the 2000 fiscal year, the Company paid Head-Beckham
AmerInsurance Agency, Inc. ("Head-Beckham"), approximately $64,100 in
commissions on the Company's and BankUnited's directors' and officers'
liability, banker's blanket bond, commercial multi-peril and workers'
compensation insurance policies. Marc Jacobson, a director of the Company and
BankUnited, is a senior vice president and member of the Board of Directors of
Head-Beckham. The Company also paid to American Central Insurance Agency, of
which Mr. Jacobson's wife is the president and owner, approximately $46,300 in
commissions on health insurance policies obtained through that agency. The
Company believes that the commissions paid on policies obtained through
Head-Beckham and American Central Insurance Agency are comparable to those that
would be paid for policies obtained through unaffiliated agencies.
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. In December 2000, BankUnited exercised
an option under the lease to extend its term through June 30, 2009. Under the
new terms of the lease the annual rent for the property is $120,744, which is a
reduction of $.50 per square foot from the previous rent, and the lease may be
renewed for two additional three-year terms. The lease terms reflect market
rates comparable to those prevailing in the area for similar transactions
involving non-affiliated parties at the time that the lease was made.
15
<PAGE>
STOCK PRICE PERFORMANCE GRAPH
The following graph presents a comparison of the cumulative total
stockholder return on the Company's Class A Common Stock with the Nasdaq Stock
Market Index, the selected peer group (the "Peer Group") and the Dow Jones
Savings & Loan Index. 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, Seacoast Banking Corporation and Republic
Bankshares. The Peer Group was chosen because it consists of publicly held
financial institutions located in Florida. The total stockholder return as
reflected in the Dow Jones Index is not required pursuant to the Rules, but has
been included by the Company for the purpose of providing general information
which may be of interest to its stockholders. The Dow Jones Savings & Loan Index
consists of savings and loans which have large market capitalizations and may
not be the best indicator for comparison with the Company's peers.
This graph assumes that $100 was invested on September 30, 1996 in the
Company's Class A Common Stock and in the other indices, and that all dividends
were reinvested. The stock price performance shown below is not necessarily
indicative of future price performance.
<TABLE>
<CAPTION>
CUMULATIVE TOTAL RETURN
---------------------------------------------------
9/95 9/96 9/97 9/98 9/99 9/00
<S> <C> <C> <C> <C> <C> <C>
BANKUNITED FINANCIAL CORPORATION 100.00 103.33 175.00 146.67 105.83 98.33
NASDAQ STOCK MARKET (U.S.) 100.00 118.68 162.92 165.50 270.38 358.89
DOW JONES SAVINGS & LOAN ASSOCIATIONS 100.00 129.77 228.27 194.58 180.91 234.94
PEER GROUP 100.00 109.39 208.80 138.87 127.85 110.68
</TABLE>
This graph shall not be deemed incorporated by reference by any general
statement incorporating by reference this Proxy Statement into any filing under
the Securities Act or the Exchange Act, except to the extent that the Company
specifically incorporates this information by reference, and shall not otherwise
be deemed filed under such acts.
16
<PAGE>
PROPOSAL TWO
APPROVAL OF AMENDMENTS TO THE 1996 INCENTIVE COMPENSATION AND STOCK AWARD
PLAN TO INCREASE THE NUMBER OF AUTHORIZED SHARES
AND ESTABLISH A PER PERSON ANNUAL LIMIT
The Board of Directors has approved and is submitting for stockholder
approval, amendments to the Company's 1996 Plan to increase the number of shares
of Common Stock available for the grant of awards under the Plan and establish a
limit (the "Annual Limit") on the number of shares for which awards in the form
of stock options may be granted under the 1996 Plan to any participant during a
calendar year.
Amendment to Increase the Number of Authorized Shares. The total number
of shares of common stock authorized for the issuance of options, stock bonuses,
stock awards, restricted stock and restricted stock units under the 1996 Plan
(collectively, "Awards") is currently 2,300,000, which is allocated as 2,040,000
shares for the grant of options and 260,000 shares for the grant of all other
Awards. The allocations between options and other Awards reflect re-allocations
made by the Compensation Committee pursuant to its authority under the Plan,
between the number of shares authorized for the grant of options and the number
of shares authorized for the grant of all other Awards. The amendment to
increase the number of shares authorized for the grant of awards under the 1996
Plan, would change the numbers "2,040,000" and "2,300,000" in the first sentence
of Section 5(a) of the 1996 Plan, to "2,890,000" and "3,150,000," respectively.
If the amendment is approved, a total of 3,150,0000 shares of the Company's
Common Stock will be issuable for the grant of Awards.
As of December 1, 2000, the Board had approved and granted under the
1996 Plan, Awards for 2,548,969 shares of Common Stock and 544,003 shares of
Series B Preferred Stock, of which Awards for 541,051 shares of Common Stock had
been forfeited, Awards for 1,199,126 shares of Common Stock and 407,000 shares
of Series B Preferred Stock were vested and options for 26,020 shares of Common
Stock and 40,000 shares of Series B Preferred Stock had been exercised. As of
December 1, 2000, there were 181,185 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 1996 Plan will be insufficient to meet the Company's compensation
requirements in fiscal 2001 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 Awards may be granted, the granting and exercise of
any such additional Awards may reduce future reportable book value per share, in
amounts that cannot be determined at this time. Further, the exercise of such
additional Awards would have a dilutive effect on the stock ownership of persons
not granted such options.
Adoption of the proposed amendment to increase the number of shares
authorized for the grant of Awards under the 1996 Plan requires the affirmative
vote of a majority of the votes of the shares present in person or by proxy at
the Annual Meeting and entitled to vote. The 1996 Plan, as amended by the
proposed amendments is described below under "Description of the 1996 Plan."
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL TWO, SUBPART (a), THE AMENDMENT TO THE 1996 INCENTIVE COMPENSATION AND
STOCK AWARD PLAN TO INCREASE THE NUMBER OF AUTHORIZED SHARES.
17
<PAGE>
Amendment to Establish a Per Person Annual Limit. The amendment to
establish a per person annual limit would limit the number of shares for which
awards in the form of stock options may be granted to any one participant during
a calendar year, to 450,000 shares of Stock, as defined under the 1996 Plan,
plus the unused portion of the previous year's limit. The unused portion of the
Annual Limit for any calendar year would be carried over and be available in
addition to the Annual Limit for the subsequent year. The amendment would number
the existing first paragraph of Section 4, captioned, "Generally" as "(a)" and
add a new Section 4(b) to the 1996 Plan, to read as follows:
4.(b) Annual Per-Person Limitation. Subject to adjustment as
hereinafter provided in Sections 5(a) and 5(d), in each calendar year
during any part of which the Plan is in effect, a Participant may be
granted Awards in the form of Stock Options relating to no more than
450,000 shares of Stock (the "Annual Limit"), plus the amount of the
Participant's unused Annual Limit as of the close of the previous year.
The Annual Limit shall not apply to Awards other than Stock Options.
In addition, the amendment would modify the first sentence of Section
5(d) of the 1996 Plan, by inserting a new clause (iii) to read, "(iii) the
Annual Limit, number of and kind of shares subject to Stock Options which may be
granted pursuant to Section 4(b), and" and by renumbering the current clause
(iii) in that sentence to "(iv)."
The purpose of the proposed amendment to establish an Annual Limit is
to preserve the Company's ability to deduct compensation paid to its employees
in the form of stock options as a business expense under the provisions of the
Internal Revenue Code and regulations thereunder. The Annual Limit will ensure
that stock options granted as compensation under the 1996 Plan will qualify as
performance-based compensation as defined under Section 162(m) of the Internal
Revenue Code and regulations thereunder. The provision for an annual limit on
stock options is a common feature of compensation plans similar to the 1996
Plan, and the Company feels that such a limit would be appropriate for the 1996
Plan.
Adoption of the proposal to establish a per person annual limit for
awards in the form of stock options under the 1996 Plan requires the affirmative
vote of a majority of the votes of the shares present in person or by proxy at
the Annual Meeting and entitled to vote. The 1996 Plan, as amended by the
proposed amendments, is described below under "Description of the 1996 Plan."
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE IN FAVOR OF
PROPOSAL TWO, SUBPART (b), THE AMENDMENT TO THE 1996 INCENTIVE COMPENSATION AND
STOCK AWARD PLAN TO ESTABLISH A PER PERSON ANNUAL LIMIT.
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, 1999 and 2000 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 the
amendments 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 the proposals. 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
2,890,000 and the number of shares of Common Stock which can be issued in
18
<PAGE>
connection with stock awards, stock bonuses, restricted stock and restricted
stock units is 260,000. To the extent that the total number of shares of Common
Stock does not exceed 3,150,000 the Committee may reallocate the split between
the number of shares of Common Stock for which options may be granted and the
number of shares of Common Stock which may be issued in connection with stock
bonuses, stock awards, restricted stock and restricted stock units in lieu of
cash or other stock-based awards. Additionally, the number of shares of Series B
Preferred Stock for which Awards may be granted is 650,000.
Each share of Class B Common Stock is convertible into 1 share of Class
A Common Stock and each share of Series B Preferred Stock is convertible into
1.4959 shares of Class B Common Stock which may be converted into Class A Common
Stock as stated above. Shares subject to a forfeited or expired Award or to an
Award that is settled in cash or otherwise terminated without issuance of shares
to the participant again become available under these limitations, but shares
withheld by the Company to satisfy withholding tax obligations are treated as
issued to the participant under the 1996 Plan. Shares issued under the 1996 Plan
may be either newly issued shares or treasury shares. On December 21, 2000 the
last reported sale price of the Class A Common Stock, the only publicly traded
stock issuable under the 1996 Plan, was $7.0625 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.
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.
19
<PAGE>
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 amendments 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 2001
fiscal year may not be made.
Federal Income Tax Implications of the 1996 Plan. The following is a
brief description of the Federal income tax consequences generally arising with
respect to Awards under the 1996 Plan.
The grant of an option will create no tax consequences for the
participant or the Company. A participant will not have taxable income upon
exercising an ISO (except that the alternative minimum tax may apply). Upon
exercising an option other than an ISO, the participant must generally recognize
ordinary income equal to the difference between the exercise price and fair
market value of the freely transferable and nonforfeitable Shares acquired on
the date of exercise.
20
<PAGE>
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.
Options Under the 1996 Plan. Over the approximately four-year period
from inception to December 1, 2000, the following persons and groups of persons
have received options under the 1996 Plan to purchase the shares shown below:
21
<PAGE>
<TABLE>
<CAPTION>
Name and Position Number of Shares
<S> <C>
Alfred R. Camner 156,369 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 281,800 Class A Common Stock
President and Chief Operating Officer
Vincent F. Post, Jr. 70,500 Class A Common Stock
Executive Vice President of BankUnited
Michael Clutter 71,500 Class A Common Stock
Executive Vice President, Credit Policy
and Risk Management, of BankUnited
Janette L. Davis 71,500 Class A Common Stock
Executive Vice President, Retail Banking, of BankUnited
Patricia I. Chong 41,500 Class A Common Stock
Former Executive Vice President, Professional/
Executive and Small Business Banking, of BankUnited(1)
All current Executive Officers as a 926,978 Class A Common Stock
group (10 in number) 176,500 Class B Common Stock
497,000 Series B Preferred Stock
All current Non-Executive Officer 79,917 Class A Common Stock
Directors as a group (4 in number)
Nominees:
Lawrence H. Blum 79,789 Class A Common Stock
Alfred R. Camner See above
Mehdi Ghomeshi See above
Each other person who has or will receive 5% of such options 22,569 Class A Common Stock
136,000 Class B Common Stock
Each other associate of such directors, executive officers - -
and nominees
All other current Employees 1,486,991 Class A Common Stock
(Including current officers who are not executive officers
of the Company approximately 283 in number)
(1) Patricia Chong's employment with the Company terminated in September 2000, and information on her
compensation is reported here pursuant to the Rules. Ms. Chong's options expired in October 2000.
</TABLE>
22
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 1,
2000 (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
------------------------------------------------ ----------- -------------- ----------- ------------ -----------
Directors and Named Executive
Officers:
<S> <C> <C> <C> <C> <C>
Allen M. Bernkrant 23,560 7.96% 37,860 7.86% 117,581 *
P.O. Box 56-1122 (2)(3)
Miami, FL 33256-1122
Lawrence H. Blum 23,560 7.96% 65,856 13.68% 247,350 1.38%
SunTrust Building - 10th Floor (2)(3)(8)
1 Southeast Third Avenue
Miami, FL 33131
Alfred R. Camner (4) 588,349 83.71% 1,705,637 91.11% 1,959,611 10.04%
255 Alhambra Circle (5)(6) (5)(6)(7) (2)(5)(6)
Coral Gables, FL 33134 (7)(8)
Michael Clutter - - - - - - - - 24,466 *
255 Alhambra Circle (2)(8)
Coral Gables, FL 33134
Janette Davis - - - - - - - - 10,600 *
255 Alhambra Circle (2)(8)
Coral Gables, FL 33134
Mehdi Ghomeshi - - - - - - - - 127,008 *
255 Alhambra Circle (2)(8)
Coral Gables, FL 33134
Marc D. Jacobson 10,000 3.38% 44,040 9.55% 156,781 *
3050 Biscayne Boulevard (2)(3)
Fourth Floor
Miami, FL 33137
Marc Lipsitz - - - - 500 * 57,952 *
550 Biltmore Way (2)(3)
Suite 700
Coral Gables, FL 33134
(Footnotes following.)
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
Amount Amount Amount
and Nature and Nature and Nature
of Beneficial Percent of of Beneficial Percent of of Beneficial Percent of
Ownership Series B Ownership Class B Ownership Class A
of Series B Preferred of Class B Common of Class A Common
Preferred Stock Common Stock Common Stock
Name and Address Stock(1) Outstanding Stock(1) Outstanding Stock(1) Outstanding(1)
---------------------- ------------- ----------- ------------ ----------- ----------- ---------------
Directors and Named Executive
Officers:
<S> <C>
Neil Messinger, M.D. - - - - - - - - 29,575 *
10801 S.W. 93rd Court (2)(3)
Miami, FL 33176
Vincent Post, Jr. - - - - - - - - 11,597 *
255 Alhambra Circle (2)(8)
Coral Gables, FL 33134
Anne W. Solloway (4) - - - - 14,469 3.24% 36,886 *
8124 S.W. 87th Terrace (2)
Miami, FL 33143
Patricia Chong (9) - - - - - - - - 3,000 *
255 Alhambra Circle
Coral Gables, FL 33134
All Current Directors and 645,469 91.84% 1,853,894 94.71% 2,755,621 13.81%
Executive Officers of the (5)(6) (5)(6)(7) (2)(5)
Company and BankUnited (6)(7)
as a group (14 persons)
Other 5% Owners:
Earline G. Ford 5,000 1.69% 478,504 57.38% 524,997 2.87%
255 Alhambra Circle (10) (10)
Coral Gables, FL 33134
Phillip Frost, M.D.(11) - - - - - - - - 1,212,874 6.83%
4400 Biscayne Boulevard (3)
Miami, Florida 33137
Charles B. Stuzin 16,560 5.60% 29,772 6.25% 147,922 *
550 Biltmore Way (12) (3)
Suite 70
Coral Gables, Florida 33134
Thomson, Horstmann & Bryant, Inc. (13) - - - - - - - - 976,600 5.50%
Park 80 West, Plaza Two
Saddle Brook, NJ 07663
Dimensional Fund Advisors, Inc. (14) - - - - - - - - 1,226,170 6.90%
1299 Ocean Avenue, 11th Floor
Santa Monica, CA 90401
* Less than 1% (Footnotes following.)
</TABLE>
24
<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 exercisable
within 60 days, 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 exercisable within 60 days: Allen Bernkrant, 34,988; Lawrence
Blum, 59,492; Alfred Camner, 25,527; Janette Davis, 8,400; Mehdi
Ghomeshi, 71,300; Marc Jacobson, 27,323; Marc Lipsitz, 47,550; Michael
Clutter, 8,666; Neil Messinger, 18,457; Vincent Post, 9,732; Anne
Solloway, 17,726; and current Directors and Executive Officers as a
group, 338,961.
(3) Includes shares which are jointly or indirectly owned by the following
persons in approximately the amounts indicated: Allen Bernkrant,
33,159; Lawrence Blum, 94,278; Marc Jacobson, 12,582; Marc Lipsitz,
4,150; Neil Messinger, 3,286; Phillip Frost, 822,889 and Charles
Stuzin, 6,373.
(4) 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.
(5) Includes 407,000 shares of Series B Preferred Stock which may be
acquired by Alfred Camner through the exercise of options exercisable
within 60 days.
(6) Series B Preferred Stock includes 10,688 shares which are indirectly
owned by the stockholder; Class B Common Stock includes 108,351 shares
which are indirectly owned by the stockholder and Class A Common Stock
includes 46,383 shares which are indirectly owned by the stockholder.
(7) Includes 545,663 shares of Class B Common Stock which may be acquired
through the exercise of options exercisable within 60 days.
(8) Includes grants of restricted shares of Class A Common Stock to the
following persons in the amounts indicated, which were made on October
25, 2000, during the 2001 fiscal year; Lawrence Blum, 250; Alfred
Camner, 13,333; Michael Clutter, 800; Janette Davis, 1,000; Mehdi
Ghomeshi, 10,000; and Vincent Post, 1,000. The shares vest and become
unrestricted over a period of five years from the date of grant.
(9) Patricia Chong's employment with the Company terminated in September
2000. Information pertaining to Ms. Chong's compensation is included in
this table pursuant to the Rules. This information is correct, to the
Company's knowledge, as of September 30, 2000.
(10) Includes options to purchase 380,150 shares of Class B Common Stock and
18,824 shares of Class A Common Stock.
(11) Based on information received from the stockholder.
(12) Includes options to purchase 5,000 shares of Class B Common Stock.
(13) Based on information as of December 1, 2000, which was received from
the stockholder. The holder is a registered investment adviser.
(14) Based on information as of September 30, 2000, which was received from
the stockholder. These shares are held as investment advisor and
investment manager.
25
<PAGE>
MISCELLANEOUS
Section 16(a) Beneficial Ownership Reporting Compliance
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, 2000, its executive officers, directors and
holders of more than 10% of the Company's Class A Common complied with all
applicable Section 16(a) filing requirements, except that each of the following
persons filed one late report of a transaction during the fiscal year due to
various lapses in communication: Michael Clutter, Janette Davis, Marc Jacobson,
Alfred Camner, Anne Solloway, Allen Bernkrant, Iliana Castillo-Frick, Lisa
Barrera and Thomas Clark.
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 2001 fiscal year. PricewaterhouseCoopers
LLP audited the Company's financial statements for the 2000 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
2002 Annual Meeting of Stockholders must be in writing and be received by the
Secretary of the Company at its executive offices, 255 Alhambra Circle, Coral
Gables, Florida 33134, no later than August 31, 2001 for inclusion in the
Company's proxy statement relating to such meeting, subject to applicable rules
and regulations.
By Order of the Board of Directors
ALFRED R. CAMNER
Chairman of the Board and
Chief Executive Officer
December 29, 2000
26
<PAGE>
Exhibit A
CHARTER
of the AUDIT COMMITTEE
of the BOARD OF DIRECTORS of
BANKUNITED FINANCIAL CORPORATION
The Board of Directors (the "Board") of BankUnited Financial
Corporation (the "Corporation") has determined that the Audit Committee of the
Board shall assist the Board in fulfilling certain of the Board's oversight
responsibilities. The Board hereby adopts this charter to establish the
governing principles of the Audit Committee.
I. Role of the Audit Committee
The role of the Audit Committee is to act on behalf of the Board in
fulfilling the following responsibilities of the Board:
A. To oversee all material aspects of the Corporation's reporting,
control and audit functions, except those that are specifically related to the
responsibilities of another committee of the Board;
B. To monitor the independence and performance of the Corporation's
independent accountants; and
C. To provide a means for open communication among the Corporation's
independent accountants, financial and senior management, the internal audit
department and the Board.
While the Audit Committee has the responsibilities and powers set forth
in this Charter, it is not the duty of the Audit Committee to plan or conduct
audits or to determine that the Corporation's financial statements are complete
and accurate or are in accordance with generally accepted accounting principles.
The responsibility to plan and conduct external audits is that of the
Corporation's independent accountants. The Corporation's management has the
responsibility to determine that the Corporation's financial statements are
complete and accurate and in accordance with generally accepted accounting
principles. Nor is it the duty of the Audit Committee to assure the
Corporation's compliance with laws and regulations or compliance with the
Corporation's code of ethical conduct. The primary responsibility for these
matters also rests with the Corporation's management.
II. Composition of the Audit Committee
A. The Board shall designate the members of the Audit Committee at the
Board's annual organizational meeting and the members shall serve until the next
such meeting or until their successors are designated by the Board.
B. The Audit Committee shall consist of three members who are free of
any relationship that, in the opinion of the Board, would interfere with their
exercise of independent judgment as committee members. Committee members shall
have a basic understanding of finance and accounting and shall be able to read
and understand financial statements. One member of the Committee shall have
accounting or related financial management experience. In addition, the members
of the Audit Committee shall meet the requirements of the rules of the principal
market or transaction reporting system on which the Corporation's securities are
traded or quoted (i.e., New York Stock Exchange, American Stock Exchange or the
Nasdaq Stock Market).
III. Meetings of the Audit Committee
The Audit Committee shall meet at least four times annually, or more
frequently as circumstances may require. The Chair of the Audit Committee shall
be responsible for meeting with the independent accountants at their request to
discuss the interim financial statements.
<PAGE>
IV. Responsibilities of the Audit Committee
The Audit Committee shall have the responsibility with respect to:
A. The Corporation's Risks and Control Environment:
o To discuss with the Corporation's management, independent
accountants and internal audit department the integrity of the
Corporation's financial reporting processes and controls,
particularly the controls in areas representing significant
financial and business risks;
o To review and update periodically a code of ethical conduct
and review the Corporation's procedures to enforce compliance
with the code; and
o To investigate any matter brought to its attention within
the scope of its duties.
B. The Corporation's Independent Accountants:
o To evaluate annually the effectiveness and objectivity of
the Corporation's independent accountants and recommend to the
Board the engagement or replacement of the independent
accountants;
o To ensure that the Audit Committee receives annually from
the Corporation's independent accountants the information
about all of the relationships between the independent
accountants and the Corporation that the independent
accountants are required to provide to the Audit Committee, to
actively engage in a dialogue with the independent accountants
about any relationships between the independent accountants
and the Corporation or any services that the independent
accountants provide or propose to provide that may impact upon
the objectivity and independence of the independent
accountants and to take, or recommend that the Board take, any
appropriate action to oversee the independence of the
independent accountants;
o To have a relationship with the independent accountants
because of the ultimate responsibility of the independent
accountants to the Board and the Audit Committee, as
representatives of the shareholders; and
o To approve the fees and other compensation paid to the
independent accountants.
C. The Corporation's Financial Reporting Process:
o To oversee the Corporation's selection of and major changes
to material accounting policies;
o To meet with the Corporation's independent accountants and
financial management both to discuss the proposed scope of the
audit and to discuss the conclusions of the audit, including
any items that the independent accountants are required by
generally accepted auditing standards to discuss with the
Audit Committee, such as, any significant changes to and
quality of the Company's accounting policies, the integrity of
the Corporation's financial reporting process and any proposed
changes or improvements in financial, accounting or auditing
practices;
o To discuss with the Corporation's financial management and
independent accountants the Corporation's annual results and,
when appropriate, the interim results before they are made
public;
o To review and discuss with the Corporation's financial
management and independent accountants the Corporation's
audited financial statements and, when appropriate, the
Corporation's interim financial statements, before they are
made public; and
o To issue for public disclosure by the Corporation the report
required by the rules of the Securities and Exchange
Commission.
A-2
<PAGE>
D. The Corporation's Internal Audit Process:
o To review, assess and approve the charter for the internal
audit department;
o To review and approve the annual internal audit plan of, and
any special projects to be undertaken by, the internal audit
department;
o To discuss with the internal audit department any changes
to, and the implementation of, the internal audit plan and any
special projects and discuss with the internal audit
department the results of the internal audits and any special
products; and
o To oversee the activities, organization structure and
qualifications of the internal audit department.
E. Other Matters
o To review and update, at least annually, this charter of the
Audit Committee;
o To review reports and any financial information submitted by
the Corporation to a government body or the public;
o To report to the Board the matters discussed at each meeting
of the Audit Committee;
o To keep an open line of communication with the financial and
senior management, the internal audit department, the
independent accountants and the Board; and
o To retain, at the Corporation's expense, special legal,
accounting or other consultants or experts it deems necessary
in the performance of its duties.
A-3
<PAGE>
Appendix 1
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 29, 2001 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. Proposal One - Election of Directors
Nominees: Class II For Against
--------
Lawrence H. Blum [ ] [ ]
Alfred R. Camner [ ] [ ]
Mehdi Ghomeshi [ ] [ ]
To withhold authority to vote for any nominee, write full
name of nominee on the line below:_______________________
_________________________________________________________
_________________________________________________________
<TABLE>
<CAPTION>
<S> <C>
2. Proposal Two - Approval of Please mark, sign, date and
Amendments to the 1996 Incentive return this Proxy card promptly,
Compensation and Stock Award using the enclosed envelope.
a) to Increase the Number of
Authorized Shares
For Against Abstain This Proxy is revocable and
[ ] [ ] [ ] when properly executed will be
voted in the manner directed by
b) to Establish a Per Person the undersigned shareholder,
Annual Limit UNLESS CONTRARY DIRECTION IS
GIVEN, THIS PROXY WILL BE VOTED
For Against Abstain "FOR" THE PROPOSALS.
[ ] [ ] [ ]
Signature Date Signature Date
------------------ -------------- ----------------------------- -------------------------
Signature if held jointly
</TABLE>
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE H. BLUM or
any one of them with full power of substitution, proxies to vote at the Annual
Meeting of Stockholders of BankUnited Financial Corporation (the "Company") to
be held on January 29, 2001 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. Proposal One - Election of Directors
Nominees: Class II For Against
--------
Lawrence H. Blum [ ] [ ]
Alfred R. Camner [ ] [ ]
Mehdi Ghomeshi [ ] [ ]
To withhold authority to vote for any nominee, write full
name of nominee on the line below:_______________________
_________________________________________________________
_________________________________________________________
<TABLE>
<CAPTION>
<S> <C>
2. Proposal Two - Approval of Please mark, sign, date and
Amendments to the 1996 Incentive return this Proxy card promptly,
Compensation and Stock Award using the enclosed envelope.
a) to Increase the Number of
Authorized Shares
For Against Abstain This Proxy is revocable and
[ ] [ ] [ ] when properly executed will be
voted in the manner directed by
b) to Establish a Per Person the undersigned shareholder,
Annual Limit UNLESS CONTRARY DIRECTION IS
GIVEN, THIS PROXY WILL BE VOTED
For Against Abstain "FOR" THE PROPOSALS.
[ ] [ ] [ ]
Signature Date Signature Date
------------------ -------------- ----------------------------- -------------------------
Signature if held jointly
</TABLE>
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
BANKUNITED FINANCIAL CORPORATION
PROXY SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints ALFRED R. CAMNER and LAWRENCE H. BLUM or
any one of them with full power of substitution, proxies to vote at the Annual
Meeting of Stockholders of BankUnited Financial Corporation (the "Company") to
be held on January 29, 2001 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. Proposal One - Election of Directors
Nominees: Class II For Against
--------
Lawrence H. Blum [ ] [ ]
Alfred R. Camner [ ] [ ]
Mehdi Ghomeshi [ ] [ ]
To withhold authority to vote for any nominee, write full
name of nominee on the line below:_______________________
_________________________________________________________
_________________________________________________________
<TABLE>
<CAPTION>
<S> <C>
2. Proposal Two - Approval of Please mark, sign, date and
Amendments to the 1996 Incentive return this Proxy card promptly,
Compensation and Stock Award using the enclosed envelope.
a) to Increase the Number of
Authorized Shares
For Against Abstain This Proxy is revocable and
[ ] [ ] [ ] when properly executed will be
voted in the manner directed by
b) to Establish a Per Person the undersigned shareholder,
Annual Limit UNLESS CONTRARY DIRECTION IS
GIVEN, THIS PROXY WILL BE VOTED
For Against Abstain "FOR" THE PROPOSALS.
[ ] [ ] [ ]
Signature Date Signature Date
------------------ -------------- ----------------------------- -------------------------
Signature if held jointly
</TABLE>
Note: Please sign exactly as your name(s) appears hereon. When signing in a
representative capacity, please give title.
<PAGE>
Appendix 2
BANKUNITED FINANCIAL CORPORATION
1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN
(As proposed for amendment on January 29, 2001)
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.
<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.
<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) 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
<PAGE>
either (i) by a subcommittee, designated by the Committee, composed solely of
two or more members who are Non-Employee Directors, or (ii) by the Committee but
with each such member who is not a Non-Employee Director abstaining or recusing
himself or herself from such action; provided, however, that, upon such
abstention or recusal, the Committee remains composed solely of two or more
members who are Non-Employee Directors. Such action, authorized by such a
subcommittee or by the Committee upon the abstention or recusal of such
non-qualifying member(s), shall be the action of the Committee for purposes of
the Plan. Any action of the Committee with respect to the Plan shall be final,
conclusive, and binding on all persons, including the Company, Subsidiaries,
Affiliates, Participants, any person claiming any rights under the Plan from or
through any Participant, and stockholders. The express grant of any specific
power to the Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or authority of the Committee. The Committee
may delegate to officers or managers of the Company or any Subsidiary the
authority, subject to such terms as the Committee shall determine, to perform
administrative functions and such other functions as the Committee may
determine, to the extent permitted under applicable law, and in the case of a
Participant then subject to Section 16 of the Exchange Act with respect to the
Company, to the extent that such delegation will not result in the loss of an
exemption under Rule 16b-3(d)(1).
(c) Limitation of Liability. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him or her by any officer or other employee of the Company or any
Subsidiary or Affiliate, the Company's independent certified public accountants,
or other professional retained by the Company to assist in the administration of
the Plan. No member of the Committee, nor any officer or employee of the Company
acting on behalf of the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to the
Plan, and all members of the Committee and any officer or employee of the
Company or its Subsidiaries acting on their behalf shall, to the extent
permitted by law, be fully indemnified and protected by the Company with respect
to any such action, determination, or interpretation.
4. Eligibility.
(a) Generally. Executive officers, officers, directors and employees of
the Company, including employees of the Company's Subsidiaries and Affiliates
who are responsible for or contribute to the management, growth and/or
profitability of the business of the Company or its Subsidiaries are eligible to
be granted Awards under the Plan.
(b) Annual Per-Person Limitation. Subject to adjustment as hereinafter
provided in Sections 5(a) and 5(d), in each calendar year during any part of
which the Plan is in effect, a Participant may be granted Awards in the form of
Stock Options relating to no more than 450,000 shares of Stock (the "Annual
Limit"), plus the amount of the Participant's unused Annual Limit as of the
close of the previous year. The Annual Limit shall not apply to Awards other
than stock options.
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 2,890,000, 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
260,000, provided however that to the extent that the total number of shares of
Common Stock does not exceed 3,150,000 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
<PAGE>
shares will again be available for Awards under the Plan. The Committee may make
determinations and adopt regulations for the counting of shares relating to any
Awards to ensure appropriate counting, avoid double counting (in the case of
tandem or substitute awards), and provide for adjustments in any case in which
the number of shares actually distributed differs from the number of shares
previously counted in connection with such Award.
(c) Type of Shares Distributable. Any shares of Stock distributed
pursuant to an Award may consist, in whole or in part, of authorized and
unissued shares or treasury shares, including shares acquired by purchase in the
open market or in private transactions.
(d) Adjustments. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Stock, or other
property) which is special, large, and non-recurring, recapitalization, stock
split, reverse split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Stock such that an adjustment is appropriate
in order to prevent dilution or enlargement of the rights of Participants under
the Plan, then the Committee shall make such equitable changes or adjustments as
it deems appropriate and, in such manner as it may deem equitable, adjust any or
all of (i) the number and kind of shares of Stock which may thereafter be issued
in connection with Awards, (ii) the number of and kind of shares of Stock issued
or issuable in respect of outstanding Awards or, if deemed appropriate, make
provisions for payment of cash or other property with respect to any outstanding
Award, (iii) the Annual Limit, number of and kind of shares subject to Stock
Options which may be granted pursuant to Section 4(b), and (iv) the exercise
price, grant price, or purchase price relating to any Award; provided, however,
in each case that, with respect to ISOs, such adjustment shall be made in
accordance with Section 424(h) of the Code, unless the Committee determines
otherwise. In addition, the Committee is authorized to make adjustments in the
terms and conditions of, and the criteria and performance objectives included in
Awards, in recognition of unusual or non-recurring events (including, without
limitation, events described in the preceding sentence, as well as acquisitions
and dispositions of businesses and assets) affecting the Company or any
Subsidiary, or business unit, or the financial statements thereof, or in
response to changes in applicable laws, regulations, accounting principles, tax
rates and regulations, or business conditions or in view of the Committee's
assessment of the business strategy of the Company, a Subsidiary, or business
unit thereof, performance of comparable organizations, economic and business
conditions, personal performance of a Participant, and any other circumstances
deemed relevant.
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any Award or
the exercise thereof, at the date of grant or thereafter (subject to Section
9(e)), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including terms
regarding forfeiture of Awards or continued exercisability of Awards in the
event of termination of employment by the Participant.
(b) Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. Unless otherwise required by applicable law,
the exercise price per share of Stock purchasable under an Option shall be
determined by the Committee; provided, however, that, except as provided in
Section 7(a), such exercise price shall be not less than the Fair Market
Value of a share on the date of grant of such Option.
(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.
<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(e) as an
element of or supplement to any other Award under the Plan.
7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem and Substitute Awards. Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in exchange or substitution
for, any other Award granted under the Plan or any award granted under any other
plan of the Company, any Subsidiary or Affiliate, or any business entity to be
acquired by the Company or a Subsidiary or Affiliate, or any other right of a
Participant to receive payment from the Company or any Subsidiary or Affiliate.
Awards may be granted in addition
<PAGE>
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 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
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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 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.
<PAGE>
(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 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
<PAGE>
"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.
