EXHIBIT 10.27a
BANK UNITED CORP.
DIRECTOR STOCK PLAN
AMENDED AND RESTATED AS OF MARCH 16, 2000
Section 1. Purpose
The purposes of the Plan are to assist the Company in (1) promoting a
greater identity of interests between the Company's non-employee directors
and its shareholders, and (2) attracting and retaining directors by
affording them an opportunity to share in the future successes of the
Company.
Section 2. Definitions
"Act" shall mean the Securities Exchange Act of 1934, as amended.
"Award" shall mean an award of Common Stock as contemplated by Section 7
of this Plan.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean the happening of any of the following
events:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (a Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company
voting Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (c) of this
Section 2; or
(b) Individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising
the Incumbent Board
shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets
of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of
the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors,
as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially
all of the Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company voting
Securities, as the case may be, (ii) no Person (excluding any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 25% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business Combination
and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board
providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
"Change in Control Price" shall mean the higher of (i) the highest
reported sales price, regular way, of a share of Common Stock in any
transaction reported on the New York Stock Exchange Composite Tape or
other national exchange on which such shares are listed or on NASDAQ
during the 60-day period prior to and including the date of a Change in
Control or (ii) if the Change in Control is the result of a tender or
exchange offer or a Corporate Transaction, the highest price per share of
Common Stock paid in such tender or exchange offer or Corporate
Transaction. To the extent that the consideration paid in any such
transaction described above consists all or in part of securities or other
noncash consideration, the value of such securities or other noncash
consideration shall be determined in the sole
discretion of the Committee.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the rules and regulations thereunder.
"Common Stock" shall mean the Class A common stock, $.0l par value, of the
Company.
"Company" shall mean Bank United Corp., a Delaware corporation.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations thereunder.
"Fair Market Value" shall mean, as of any given date, the mean between the
highest and lowest reported sales prices of the Common Stock on the New
York Stock Exchange Composite Tape or, if not listed on such exchange, on
any other national securities exchange on which the Common Stock is listed
or on NASDAQ, adjusted to the next higher five cents if such mean is not
divisible by five cents. If there is no regular public trading market for
such Common Stock, the Fair Market Value of the Common Stock shall be
determined by the Committee in good faith.
"Fees" shall mean the annual retainer fee for a Participant in connection
with his or her service on the Board for any fiscal year of the Company.
"Participant" shall mean each member of the Board who is not an employee
of the Company or any subsidiary of the Company.
"Plan" shall mean the Bank United Corp. Director Stock Plan.
"Retirement" shall mean the retirement by a Participant from the Board in
accordance with the Company's stated policy on Director retirement.
"Rules" shall mean the rules promulgated under the Act from time to time
and the interpretations issued by Securities and Exchange Commission in
respect thereof.
"Stock Option" shall mean a non-qualified stock option, which is further
defined as any right to Common Stock which does not qualify as an
"incentive stock option" as defined under the Code.
Section 3. Eligibility
Each member of the Board who is not an employee of the Company or any
subsidiary of the Company shall be eligible to participate in the Plan.
Section 4. Shares Subject to the Plan
The maximum number of shares of Common Stock which shall be available for
use under the Plan shall be 250,000, subject to adjustment pursuant to
Section 15 hereunder. The shares issued under the Plan may be authorized
and unissued shares or issued shares heretofore or hereafter acquired and
held as treasury shares or shares purchased on the open market.
Section 5. Duration of Plan
Unless earlier terminated pursuant to Section 11 hereof, this Plan shall
automatically terminate on, and no grants, awards or elections may be made
after, the date of the tenth anniversary of the approval by stockholders
of the Plan pursuant to Section 17 hereof.
Section 6. Administration
(a) The Plan shall be administered by the Board or any committee thereof
so designated by the Board (the "Committee"), which shall have full
authority to construe and interpret the Plan, to establish, amend and
rescind rules and regulations relating to the Plan, and to take all such
actions and make all such determinations in connection with the Plan as it
may deem necessary or desirable.
(b) Notwithstanding any other provision of the Plan, neither the Board nor
the Committee shall be authorized to exercise any discretion with respect
to the selection of Participants to receive Awards or Stock Options under
the Plan or concerning the amount, timing or vesting of such Awards or
Stock Options under the Plan, and no amendment or termination of the Plan
shall adversely affect the interest of any Director in Awards or Stock
Options previously granted to the Director without that Director's express
written consent.
Section 7. Stock in Lieu of Retainer
Each Participant who, in any year of the Plan, delivers to the Company
written notice of an irrevocable election concerning the Fees to be earned
in the next fiscal year of the Company, may receive in lieu of cash an
amount of shares of Common Stock equal in value to all or any portion of
the Fees (but only in increments of 25% or a multiple thereof, and in no
event to exceed 100% of the Fees) as so designated by the Participant in
such written notice, which amount shall be determined by dividing the Fees
payable in each fiscal quarter of the Company by the Fair Market Value of
a share of Common Stock on the last business day of such fiscal quarter
(but if such date is not a day on which the New York Stock Exchange is
open, then on the next preceding day on which the New York Stock Exchange
is open), except that only whole numbers of shares shall be obtainable
pursuant to this Section 7, and any remaining Fees which otherwise would
have purchased a fractional share shall be paid in cash. Any such written
notice pursuant to this Section 7 shall remain in effect for subsequent
Plan years unless such Participant delivers a written notice setting forth
a different election with respect to Fees which shall be applied to future
Plan years until further written notice is received by the Company
pursuant to this Section 7.
Section 8. Stock Options
(a) Each director of the Company who is not otherwise an employee of the
Company or any of its subsidiaries or Affiliates, shall, on the first
Tuesday following his or her first election as a director of the Company,
and thereafter on the day after each Annual Meeting of Stockholders during
such director's term, automatically be granted Stock Options to purchase
one thousand (1,000) shares of Common Stock at a price equal to the Fair
Market Value of the Common Stock at the date of grant of such Stock
Option.
(b) A director Stock Option shall be granted hereunder only if as of each
date of grant the director (i) is not otherwise an employee of the Company
or any of its subsidiaries or Affiliates, (ii) has not been an employee of
the Company or any of its subsidiaries or Affiliates for any part of the
preceding fiscal year, and (iii) has served on the Board continuously
since the commencement of his term.
(c) Each Stock Option granted on or after March 17, 2000 shall vest and
become exercisable on the date of grant.
(d) Each vested Stock Option shall remain outstanding until the tenth
anniversary of the date of grant. In the event a Director's service to the
Company terminates, any vested Stock Option then held by a Director shall
be cancelled 120 days after such termination of service.
(e) Each holder of a Stock option granted pursuant to this Section B shall
also have the rights specified in Section 13.
(f) In the event that the number of shares of Common Stock available for
future grant under the Plan is insufficient to make all automatic grants
required to be made on such date, then all non-employee directors entitled
to a grant on such date shall share ratably in the number of Stock Options
on shares available for grant under the Plan.
Section 9. Transferability
Stock Options, rights, grants and Awards under the plan may not be
assigned, transferred, pledged or hypothecated, and shall not be subject
to execution, attachment or similar process. Notwithstanding the
foregoing, any such Stock Option, right, grant or award constituting a
"derivative security" under the Rules shall not be transferable by a
Participant other than (i) by will or by operation of applicable laws of
descent and distribution, (ii) pursuant to a gift to such optionee's
children and immediate family members, whether directly or indirectly or
by means of a trust or partnership or otherwise, or (iii) pursuant to a
domestic relations order or qualified domestic relations order as such
terms are defined by the Code or ERISA.
Section 10. Amendment
(a) The Board may from time to time make such amendments to the Plan as it
may deem proper and in the best interest of the Company without further
approval of the Company's stockholders, provided that to the extent
required to qualify transactions under the Plan for exemption under Rule
16b-3 promulgated under the Act ("Rule l6b-3") no amendment to the Plan
shall be adopted without further approval by the holders of at least a
majority of the shares of Common Stock present, or represented, and
entitled to vote at a meeting held for such purpose, and provided further,
that if and to the extent required for the Plan to comply with Rule 16b-3,
no amendment to the Plan shall be made more than once in any six-month
period that would change the amount, price or timing of the grants of
Awards or Stock Options hereunder other than to comport with changes in
the Code, ERISA, or the regulations thereunder.
Section 11. Termination
The Plan may be terminated at any time by the Board or by the approval by
the holders of at least a majority of the shares of Common Stock present,
or represented, and entitled to vote at a meeting held for such purpose.
Section 12. Withholding Taxes
No later than the date as of which an amount first becomes includible in
the gross income of the Participant for Federal income tax purposes with
respect to any Award under the Plan or with respect to any exercise of any
Stock Option granted under the Plan, the Participant shall pay to the
Company, or make arrangements satisfactory to the Company regarding the
payment of, any Federal, state, local or foreign taxes of any kind
required by law to be withheld. Such withholding obligations may be
settled with Common Stock, including Common Stock that is part of the
Award or that is received upon the exercise of the Stock Option that gives
rise to the withholding requirement. The obligations of the Company under
the Plan shall be conditional upon such payment or arrangements, and the
Company shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment otherwise due to the Participant. The
Company may establish such procedures as it deems appropriate, including
the making of irrevocable elections or the timing of the use of Common
Stock, for the settlement of its withholding obligations.
Section 13. Effect of Change in Control
Notwithstanding any other provision of the Plan to the contrary, in the
event of a Change in Control, any Stock options outstanding and not then
exercisable and vested as of the date such Change in Control is determined
to have occurred, shall become fully exercisable and vested to the full
extent of the original grant. During the 60-day period from and after a
change in Control (the "Exercise Period"), a Participant who holds an
Award or a Stock Option shall have the right, in lieu (in the case of a
Stock Option) of the payment of the exercise price for the shares of
Common Stock being purchased under the Stock option, by giving notice to
the Company, to elect (within the Exercise Period) to surrender all or
part
of an Award or a Stock Option to the Company and to receive cash, within
30 days of such notice, in an amount equal to (a) in the case of a Stock
Option, the amount by which the Change in Control Price per share of
Common Stock on the date of such election shall exceed the exercise price
per share of Common Stock under the Stock Option (the "Spread") multiplied
by the number of shares of Common Stock granted under the Stock Option as
to which the right granted under this Section shall have been exercised,
or (b) in the case of an Award, an amount equal to the Change in Control
Price multiplied by the number of shares of Common Stock granted pursuant
to such Award as to which the right granted under this Section shall have
been exercised. Notwithstanding the foregoing, if any right granted
pursuant to this Section 13 would make a Change on Control transaction
ineligible for pooling-of-interests accounting under APB No. 16 that but
for the nature of such grant would otherwise be eligible for such
accounting treatment, the Board shall have the ability to substitute for
the cash payable pursuant to such right Common Stock with a Fair Market
Value equal to the cash that would otherwise be payable hereunder.
Section 14. Effect of Termination for Cause
If a Participant incurs a termination of membership on the Board for
cause, such Participant's Stock Options shall be automatically cancelled
immediately. Unless otherwise determined by the Board, for purposes of the
Plan "cause" shall mean (i) the conviction of the Participant for
commission of a felony under Federal law or the law in the state in which
such action occurred, or (ii) dishonesty in the course of fulfilling the
Participant's duties as a director.
Section 15. Adjustments Upon Changes in Capitalization
In the event of any change in corporate capitalization, such as a stock
split or a corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock or
property of the Company, any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of
the Code) or any partial or complete liquidation of the Company, the
Committee or Board may make such substitution or adjustments in the
aggregate number and class of shares reserved for issuance under the Plan,
in the number, kind and option price of shares subject to outstanding
Stock Options, in the number and kind of shares subject to other
outstanding Awards granted under the Plan and/or such other equitable
substitution or adjustments as it may determine to be appropriate in its
sole discretion; provided, however, that the number of shares subject to
any Award shall always be a whole number.
Section 16. Regulatory Matters
The Plan is intended to be construed so that participation in the Plan
will be exempt from Section 16(b) of the Act, pursuant to Rule 16b-3 as
promulgated thereunder, as may be further amended or interpreted by the
Securities and Exchange Commission. In the event that any provision of the
Plan shall be deemed not to be in compliance with the Rules in order to
enjoy the exemption from the Act, such provision shall be deemed of no
force or effect and the remaining provisions of the Plan shall remain in
effect.
Section 17. Effectiveness of Plan
The Plan shall become effective as of the date it is first approved by a
majority of the shares of stock of the Company then entitled to vote.