As filed with the Securities and Exchange Commission on November 14, 1996
Registration No. 333-13211
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-4
ON FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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BANKUNITED FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
-------------------------------
FLORIDA
(State or other jurisdiction of incorporation or organization)
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65-0377773
(I.R.S. Employer Identification No.)
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255 Alhambra Circle
Coral Gables, Florida 33134
(Address of Principal Executive Offices) (Zip Code)
-------------------------------
THE BANKUNITED FINANCIAL CORPORATION STOCK OPTION PLAN
FOR FORMER SUNCOAST EMPLOYEES
(Full title of the Plan)
-------------------------------
Alfred R. Camner
Chairman of the Board
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
(Name and Address of Agent for Service)
-------------------------------
(305) 569-2000
(Telephone Number, Including Area Code, of Agent for Service)
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by BankUnited Financial Corporation, a Florida corporation
(the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K/A for the fiscal year ended
September 30, 1995, filed with the Commission on February 5, 1996;
(b)(1) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1995, March 31, 1996 and June 30, 1996, filed with
the Commission on February 13, 1996, May 10, 1996 and August 13, 1996,
respectively;
(b)(2) The Company's Current Reports on Form 8-K dated November 30, 1995,
March 1, 1996 and July 17, 1996, filed with the Commission on December 1, 1996,
March 4, 1996 and July 17, 1996, respectively; and
(c) The description of the Common Stock of the Company contained in the
Company's Registration Statement on Form S-4 (File No. 333-13211), filed with
the Commission on October 1, 1996 and Current Report on Form 8-K (File No.
33-55232) dated March 5, 1993.
In addition, all reports and other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such reports
and documents.
Any statement contained herein or in a document all or a portion of which
is incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Company's Class A Common Stock to be
issued under the BankUnited Stock Option Plan for Former Suncoast Employees will
be passed upon for the Company by Stuzin and Camner, Professional Association
("Stuzin and Camner"), Miami, Florida. Alfred R. Camner, Chairman of the Board,
Chief Executive Officer, President and a Director of the Company, is the senior
managing director and shareholder of Stuzin and Camner, Marc Lipsitz, a Director
of the Company, is the managing director of Stuzin and Camner, and Earline G.
Ford, Executive Vice President, Treasurer and a Director of the Company, is the
legal administrator of Stuzin and Camner. As of September 27, 1996, directors
and employees of Stuzin and Camner directly and indirectly owned in the
aggregate approximately 1,261,428 shares of the Company's Class A Common Stock,
974,553 shares of the Company's Class B Common Stock and 92,578 shares of the
Company's Preferred Stock (including shares that may be acquired by the exercise
of options, but not including shares received upon the conversion of other
classes of stock).
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Article IX of the Articles of Incorporation of the Company provides that
the Company shall indemnify its officers and directors to the fullest extent
permitted by law.
The Bylaws of the Company provide that the Company will indemnify any
person against whom an action is brought or threatened because that person is or
was a director, officer or employee of the Company for any amount for which that
person becomes liable under a judgment in such action and reasonable costs and
expenses, including attorneys' fees. Such indemnification may only be made,
however, if (i) final judgment on the merits is in his or her favor or (ii), in
case of settlement, final judgment against him or her or final judgment in his
or her favor, other than on the merits, if a majority of the Board of Directors
of the Company determines that he or she was acting in good faith within the
scope of his or her duties and for a purpose he or she could have reasonably
believed under the circumstances was in the best interests of the Company.
Section 607.0831 of the Florida Business Corporation Act provides, among
other things, that a director is not personally liable for monetary damages to a
company or any other person for any statement, vote, decision, or failure to act
by the director regarding corporate management or policy, unless the director
breached or failed to perform his or her duties as a director and such breach or
failure constitutes: (a) a violation of criminal law, unless the director had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; (b) a transaction from which
the director derived an improper personal benefit; (c) a circumstance under
which the liability provisions of Section 607.0834 of the Florida Business
Corporation Act (relating to the liability of the directors for improper
distributions) are applicable; (d) willful misconduct or a conscious disregard
for the best interest of the company in the case of a proceeding by or in the
right of the company to procure a judgment in its favor or by or in the right of
a shareholder; or (e) recklessness or an act or omission in bad faith or with
malicious purpose or with wanton and willful disregard of human rights, safety
or property, in a proceeding by or in the right of someone other than such
company or a shareholder.
Section 607.0850 of the Florida Business Corporation Act authorizes, among
other things, the Company to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of the Company) by reason of
the fact that he is or was a director, officer, employee or agent of the Company
(or is or was serving at the request of the Company in such a position for any
entity) against liability incurred in connection with
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such proceeding, if he or she acted in good faith and in a manner reasonably
believed to be in the best interests of the Company and, with respect to
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful.
Florida law requires that a director, officer or employee be indemnified
for expenses (including attorneys' fees) to the extent that he or she has been
successful on the merits or otherwise in the defense of any proceeding. Florida
law also allows expenses of defending a proceeding to be advanced by a company
before the final disposition of the proceedings, provided that the officer,
director or employee undertakes to repay such advance if it is ultimately
determined that indemnification is not permitted.
Florida law states that the indemnification and advancement of expenses
provided pursuant to Section 607.0850 is not exclusive and that indemnification
may be provided by a company pursuant to other means, including agreements or
bylaw provisions. Florida law prohibits indemnification or advancement of
expenses, however, if a judgment or other final adjudication establishes that
the actions of a director, officer or employee constitute: (i) a violation of
criminal law, unless he or she had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (ii) a transaction from which such person derived an improper personal
benefit; (iii) willful misconduct or conscious disregard for the best interests
of the company in the case of a derivative action or a proceeding by or in the
right of a shareholder; or (iv) in the case of a director, a circumstance under
which the liability provisions of Section 607.0834 of the Florida Business
Corporation Act (relating to the liability of directors for improper
distributions) are applicable.
The Company has purchased director and officer liability insurance that
insures directors and officers against liabilities in connection with the
performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
------- -----------
4.1 Articles of Incorporation of the Company (Exhibit 3.1 to
the Company's Form S-4 Registration Statement, File No.
33-55232, as filed with the Commission on December 2,
1992).
4.2 Statement of Designation of Series I Class A Common Stock
of the Company, as amended. (Exhibit 3.2 to the Company's
Registration Statement on Form S-2, File No. 33-80791, as
filed with the Commission on December 22, 1995).
4.3 Certificate of Designation of 8% Noncumulative Convertible
Preferred Stock, Series 1993, of the Company (Exhibit 4.5
to the Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1993, as filed with the
Commission on December 21, 1993).
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EXHIBIT DESCRIPTION
------- -----------
4.4 Certificate of Designation of 9% Noncumulative Perpetual
Preferred Stock (Exhibit 4.1 to Amendment No. 1 to the
Company's Registration Statement on Form S-4, File No.
33-69834, as filed with the Commission on November 19,
1993).
4.5 Bylaws of the Company.
4.6 Agreement for Advances and Security Agreement with Blanket
Floating Lien, dated as of September 25, 1992, between
BankUnited, FSB (the "Bank") and the Federal Home Loan Bank
of Atlanta (Exhibit 4.1 to the Bank's Annual Report on Form
10-K for the fiscal year ended September 30, 1992, filed
with the Commission as an exhibit to the Company's Report
on Form 8-K dated March 25, 1993).
4.7 Form of Series 15A-F, Series 18E and Series 20A-F of
Subordinated Notes of the Bank (Exhibit 4.3 to the
Company's Form S-4 Registration Statement, File No. 33-
55232, as filed with the Commission on December 2, 1992).
4.8 Statement of Designation of 8% Noncumulative Convertible
Preferred Stock, Series 1996.
4.9 Statement of Designation of Series I Class A Common Stock
and Class B Common Stock.
4.10 Articles of Amendment to the Company's Articles of
Incorporation.
5.1 Opinion of Stuzin and Camner, P.A. regarding the legality
of the securities being registered.
23.1 Consent of Price Waterhouse LLP.
24.1 Power of attorney (set forth on the signature page in Part
II of this Registration Statement).
- -----------------------
(A) Exhibits containing a parenthetical reference in their description are
incorporated herein by reference from the documents described in the
parenthetical reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed
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that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
PROVIDED, HOWEVER, that the undertakings in paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with the
Commission by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coral Gables, Florida, on this 14th day of November,
1996.
BANKUNITED FINANCIAL CORPORATION
By: /s/ ALFRED R. CAMNER
------------------------------------
Alfred R. Camner
Chairman of the Board, President and
Chief Executive Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Alfred
R. Camner, Earline G. Ford and Marc Jacobson and each of them, his true and
lawful attorney-in-fact and agent with full power of substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits hereto and all documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent,
full power and authority to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on November 14, 1996 by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE
/s/ ALFRED R. CAMNER Chairman of the Board, Chief Executive
- ------------------------ Officer, President and Director (Principal
Alfred R. Camner Executive Officer)
/s/ LAWRENCE H. BLUM* Director
- ------------------------
Lawrence H. Blum
/S/ JAMES A. DOUGHERTY* Chief Operating Officer, Executive Vice
- ------------------------ President and Director
James A. Dougherty
/S/ EARLINE G. FORD* Executive Vice President, Treasurer and
- ----------------------- Director
Earline G. Ford
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SIGNATURE TITLE
--------- -----
/s/ SAMUEL A. MILNE* Senior Vice President and Chief Financial
- ----------------------------- Officer (Principal Financial Officer and
Samuel A. Milne Principal Accounting Officer)
/s/ MARC D. JACOBSON* Director
- -----------------------------
Marc D. Jacobson
- ----------------------------- Director
Allen M. Bernkrant
- ----------------------------- Director
Patricia L. Frost
- ----------------------------- Director
Bruce Friesner
/s/ SANDRA GOLDSTEIN* Director
- -----------------------------
Sandra Goldstein
- ----------------------------- Director
Robert D. Lurie
/s/ ANNE W. SOLLOWAY* Director
- -----------------------------
Anne W. Solloway
/s/ CHRISTINA CUERVO MIGOYA* Director
- -----------------------------
Christina Cuervo Migoya
- ----------------------------- Director
Neil Messinger
/S/ MARC LIPSITZ Director
- -----------------------------
Marc Lipsitz
* Alfred R. Camner by signing his name hereto signs this document on behalf
of each of the persons indicated above pursuant to the powers of attorney
duly executed by such persons and set forth on the signature page of the
Registration Statement filed with the Commission.
/s/ ALFRED R. CAMNER
---------------------
Alfred R. Camner
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
4.1* Articles of Incorporation of the Company (Exhibit 3.1
to the Company's Form S-4 Registration Statement, File
No. 33-55232, as filed with the Commission on December
2, 1992).
4.2* Statement of Designation of Series I Class A Common
Stock of the Company, as amended. (Exhibit 3.2 to the
Company's Registration Statement on Form S-2, File No.
33-80791, as filed with the Commission on December 22,
1995).
4.3* Certificate of Designation of 8% Noncumulative
Convertible Preferred Stock, Series 1993, of the
Company (Exhibit 4.5 to the Company's Annual Report on
Form 10-K for the fiscal year ended September 30,
1993, as filed with the Commission on December 21,
1993).
4.4* Certificate of Designation of 9% Noncumulative
Perpetual Preferred Stock (Exhibit 4.1 to Amendment
No. 1 to the Company's Registration Statement on Form
S-4, File No. 33-69834, as filed with the Commission
on November 19, 1993).
4.5 Bylaws of the Company.
4.6* Agreement for Advances and Security Agreement with
Blanket Floating Lien, dated as of September 25, 1992,
between BankUnited, FSB (the "Bank") and the Federal
Home Loan Bank of Atlanta (Exhibit 4.1 to the Bank's
Annual Report on Form 10-K for the fiscal year ended
September 30, 1992, filed with the Commission as an
exhibit to the Company's Report on Form 8-K dated
March 25, 1993).
4.7* Form of Series 15A-F, Series 18E and Series 20A-F of
Subordinated Notes of the Bank (Exhibit 4.3 to the
Company's Form S-4 Registration Statement, File No.
33-55232, as filed with the Commission on December 2,
1992).
4.8 Statement of Designation of 8% Noncumulative Convertible
Preferred Stock, Series 1996.
4.9 Statement of Designation of Series I Class A Common Stock
and Class B Common Stock.
4.10 Articles of Amendment to the Company's Articles of
Incorporation.
5.1 Opinion of Stuzin and Camner, P.A. regarding the
legality of the securities being registered.
23.1 Consent of Price Waterhouse LLP.
24.1 Power of attorney (set forth on the signature page in
Part II of this Registration Statement).
- ---------------------
* Previously filed.
BYLAWS
OF
BANKUNITED FINANCIAL CORPORATION
ARTICLE ONE
MEETINGS OF STOCKHOLDERS
1.1 ANNUAL MEETING OF STOCKHOLDERS. The annual meeting of stockholders
of BankUnited Financial Corporation (the "Corporation") shall be held during the
first four months after the end of each fiscal year of the Corporation at such
time and place, within or without the State of Florida, as may from time to time
be fixed by the Board of Directors; provided, however, that failure to hold the
annual meeting shall not work a forfeiture or affect otherwise valid corporate
acts.
1.2 SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of the
stockholders may be called at any time by the Board of Directors, the Chairman
of the Board, if any, the President, or any holder or holders of as much as 10%
of all shares of the Corporation entitled to vote at the meeting. Special
meetings of the stockholders shall be held at such time and place, within or
without the State of Florida, as may be determined by the person or persons
calling the meeting.
1.3 NOTICE. The Secretary or the officer or persons calling the meeting
shall deliver a written notice of the place, day and hour of all meetings of
stockholders, not less than 10 nor more than 60 days before the date of the
meeting, either personally or by first class mail, to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail with first class postage
thereon prepaid, addressed to the stockholder at his address as it appears on
the stock transfer books of the Corporation. The notice of any special meeting
of stockholders shall state the purpose or purposes for which the meeting is
called. Notice of any meeting of stockholders need not be given to any
stockholder who signs a waiver of notice, either before or after the meeting.
Attendance of a stockholder at a meeting, either in person or by proxy, shall of
itself constitute waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a stockholder attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
If a meeting is adjourned for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
1.4 FIXING OF RECORD DATE. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors shall fix in advance a date as the record
date for any such determination of stockholders. Such date in any case shall be
not more than 60 days, and in case of a meeting of stockholders, not less than
10 days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
1.5 VOTING; PRESIDING OFFICER. At all meetings of the
stockholders, each holder of shares of the capital stock of the Corporation
shall be entitled to cast such vote as he or she may have, either in person or
by written
1
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proxy, for each share standing in his or her name on the books of the
Corporation. The Chairman of the Board, or if there is no such officer, the
President, shall preside at all meetings of the stockholders, unless he or she
delegates such authority.
1.6 PROXIES. At all meetings of stockholders, a stockholder may vote by
proxy executed in writing by the stockholder or by his or her duly authorized
attorney-in-fact. Proxies solicited on behalf of the management shall be voted
as directed by the stockholder or, in the absence of such direction, as
determined by a majority of the Board of Directors. No proxy shall be valid
after three years from the date of its execution unless otherwise provided in
the proxy.
1.7 VOTING OF SHARES IN THE NAME OF TWO OR MORE PERSONS. When shares
stand of record in the name of two or more persons, whether fiduciaries, members
of a partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons have the same fiduciary relationship
respecting the same shares, in the absence of written directions to the
Corporation to the contrary, their acts with respect to voting, in person or by
proxy, shall have the following effect: (a) if only one votes, his or her act
binds all; (b) if more than one vote, the act of the majority so voting binds
all; and (c) if more than one vote, but the vote is evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any, may
apply to the appropriate Florida court or such other court as may have
jurisdiction to appoint an additional person to act with the persons so voting
the shares, which shall then be voted as determined by a majority of such
persons and the person appointed by the court. If the instrument so filed shows
that any such tenancy is held by unequal interests, a majority or even split for
the purpose of this subsection shall be a majority or even split in interest.
1.8 VOTING OF SHARES BY CERTAIN HOLDERS. Persons holding stock in a
fiduciary capacity shall be entitled to vote the shares so held. Persons whose
stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation he or she has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his or her proxy,
may represent such stock and vote thereon.
Neither treasury shares of its own stock held by the
Corporation, nor shares held by another corporation, if a majority of the shares
entitled to vote for the election of directors of such other corporation are
held by the Corporation, shall be voted at any meeting or counted in determining
the total number of outstanding shares at any given time for purposes of any
meeting.
1.9 QUORUM; ADJOURNMENT. At all meetings of stockholders, a majority of
the shares of the Corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum for the transaction of business, and, except as
otherwise required by law, all matters acted upon at such meeting shall require
the affirmative vote of a majority of the shares represented at the meeting and
entitled to vote. Directors shall be elected by a plurality of the votes of the
shares, present in person or by proxy, at the meeting and entitled to vote on
the election of directors. Where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes, present
in person or by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter and the affirmative vote of the majority of
shares of such class or classes, present in person or by proxy, at the meeting
shall be the act of such class. The holders of a majority of the shares
represented at a meeting, whether or not a quorum is present, may adjourn such
meeting from time to time.
ARTICLE TWO
DIRECTORS
2.1 POWERS OF THE BOARD. Subject to the Florida Business Corporation
Act and the Corporation's Articles of Incorporation, the full and entire
management of the affairs and business of the Corporation shall be vested in the
Board of Directors, which shall have and may exercise all of the powers that may
be exercised or performed by the Corporation.
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2.2 NUMBER OF DIRECTORS; CONDUCT OF MEETINGS. The Board of Directors
shall consist of not less than five nor more than 20 members, such number within
these parameters to be set by the Board of Directors by resolution. Except with
respect to any directors elected by holders of one or more series of stock or of
preferred stock as set forth in the Articles of Incorporation or the resolutions
providing for the issuance of such stock, the Board of Directors shall be
divided into three classes of directors of as nearly equal numbers as is
possible, designated Class I, Class II and Class III, respectively, serving
staggered three-year terms, with the term of a class expiring at each annual
meeting of stockholders. Reflecting the Corporation's Reincorporation in Florida
in 1995, the terms of office of directors of Class III shall expire at the
annual meeting of stockholders in 1996, that of the directors of Class I at the
1997 meeting, and that of the directors of Class II at the 1998 meeting, and the
Board of Directors shall initially appoint the members of each class. At each
annual meeting of stockholders, a number of directors equal to the number of
directors of the class whose term expires at such meeting (or the number of
directors properly nominated and qualified for election) shall be elected to
hold office until the third succeeding annual meeting of stockholders after
their election. In all cases, each director shall serve until his successor is
elected and qualified, or until his earlier death, resignation or removal.
A majority of said directors shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors. Except as
otherwise provided in these Bylaws, all resolutions adopted and all business
transacted by the Board of Directors shall require the affirmative vote of a
majority of the directors present at the meeting.
The Chairman of the Board, or if there is no Chairman of the
Board, then the Vice Chairman of the Board shall preside at all meetings of the
Board of Directors, unless he delegates such authority. If there is no Chairman
of the Board and the Vice Chairman of the Board is not a director, the directors
shall select a chairman for each meeting from their members.
2.3 VACANCIES. Except with respect to any directors elected by holders
of one or more series of stock or of preferred stock as set forth in the
Articles of Incorporation or the resolutions providing for the issuance of such
stock, vacancies and newly created directorships resulting from an increase in
the authorized number of directors may be filled by the affirmative vote of a
majority of the remaining directors though less than a quorum of the Board of
Directors. As to any director elected by holders of one or more series of stock
or of preferred stock as set forth in the Articles of Incorporation or the
resolutions providing for the issuance of such stock, vacancies and newly
created directorships resulting from an increase in the authorized number of
directors may be filled by the affirmative vote of the holders of such series of
stock or preferred stock that elected such director, such action to be taken at
a meeting called for such purpose. The directors elected to fill a vacancy or a
newly created directorship resulting from an increase in the number of
directors, shall hold office until the next annual election of directors by the
stockholders and the election and qualification of his successor.
2.4 MEETING OF THE BOARD OF DIRECTORS; NOTICE. The directors shall meet
annually immediately following the annual meeting of the stockholders; provided,
however, that the failure to hold the annual meeting shall not work a forfeiture
or affect otherwise valid corporate acts. Special meetings of the directors may
be called at any time by the Chairman of the Board or President, or by any two
directors, on two days' notice, which may be given personally or by first class
mail, telegram or cablegram and shall be deemed given when mailed or when the
telegram or cablegram is sent, addressed to the director at his address as it
appears on the stockholder records of the Corporation or, if he is not a
stockholder, to his business address. Notice of any such meeting may be waived
by an instrument in writing. Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a director states, at the
beginning of the meeting, any such objection or objections to the transaction of
business. Any meeting of the Board of Directors may be held within or without
the State of Florida at such place as may be determined by the person or persons
calling the meeting.
Members of the Board of Directors, or any committee designated
by the Board of Directors, may participate in a meeting thereof by means of
conference telephone or similar communications equipment by means
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of which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this by law shall constitute presence in
person at such meeting.
2.5 DIRECTOR ACTION WITHOUT A MEETING. Any action required to be taken
at a meeting of the directors, or any action that may be taken at a meeting of
the directors, may be taken without a meeting if a consent in writing, setting
forth the action so to be taken and signed by all the directors, is filed with
the minutes of the proceedings of the directors.
2.6 RESIGNATION. Any director may resign at any time by sending a
written notice of such resignation to the principal office of the Corporation
addressed to the Chairman of the Board or the President. Unless otherwise
specified therein, such resignation shall take effect upon receipt thereof by
the Chairman of the Board or the President.
2.7 COMPENSATION. The Board of Directors shall have the authority to
fix the compensation of directors, which compensation may include reasonable
expenses of attendance, if any. The Board of Directors shall also have the
authority to compensate members of either standing or special committees for
their attendance at committee meetings.
2.8 PRESUMPTION OF ASSENT. A director of the Corporation who is present
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless his or
her dissent or abstention shall be entered in the minutes of the meeting or
unless he or she shall file his or her written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation within five days after the date he or she receives a copy of the
minutes of the meeting. Such right to dissent shall not apply to a director who
voted in favor of such action.
ARTICLE THREE
EXECUTIVE AND OTHER COMMITTEES
3.1 APPOINTMENT. The Board of Directors, by resolution adopted by a
majority of the full Board, may designate the Chief Executive Officer and two or
more of the other directors to constitute an Executive Committee. The
designation of any committee pursuant to this Article III and the delegation of
authority thereto shall not operate to relieve the Board of Directors, or any
director, of any responsibility imposed by law or regulation.
3.2 AUTHORITY. The Executive Committee, when the Board of Directors is
not in session, shall have and may exercise all of the authority of the Board of
Directors in the management and affairs of the Corporation, except to the extent
that such authority shall be limited by the Articles of Incorporation, these
Bylaws, or laws of the State of Florida.
3.3 TENURE. Subject to the provisions of Section 3.8, each member of
the Executive Committee shall hold office until the next regular annual meeting
of the Board of Directors following his or her designation and until his or her
successor is designated as a member of the Executive Committee.
3.4 MEETINGS. Regular meetings of the Executive Committee may be held
without notice at such times and places as the Executive Committee may fix from
time to time by resolution. Special meetings of the Executive Committee may be
called by any member thereof upon not less than one day's notice stating the
place, date and hour of the meeting, which notice may be written or oral. Any
member of the Executive Committee may waive notice of any meeting and no notice
of any meeting need be given to any member thereof who attends in person. The
notice of a meeting of the Executive Committee need not state the business
proposed to be transacted at the meeting.
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3.5 QUORUM. A majority of the members of the Executive Committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
action of the Executive Committee must be authorized by the affirmative vote of
a majority of the members present at a meeting at which a quorum is present.
3.6 ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by the Executive Committee at a meeting may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the members of the Executive Committee.
3.7 VACANCIES. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
3.8 RESIGNATIONS AND REMOVAL. Any member of the Executive Committee may
be removed at any time with or without cause by resolution adopted by a majority
of the full Board of Directors. Any member of the Executive Committee may resign
from the Executive Committee at any time by giving written notice to the
President or Secretary of the Corporation. Unless otherwise specified thereon,
such resignation shall take effect upon receipt. The acceptance of such
resignation shall not be necessary to make it effective.
3.9 PROCEDURE. The Executive Committee shall elect a presiding officer
from its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws. It shall keep regular minutes of its proceedings
and report the same to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
3.10 OTHER COMMITTEES. The Board of Directors may, by resolution,
establish an Audit Committee or other committees composed of directors as they
may determine to be necessary or appropriate for the conduct of the business of
the Corporation and may prescribe the duties, constitution and procedures
thereof.
ARTICLE FOUR
OFFICERS
4.1 OFFICERS; ELECTION. The Board of Directors shall elect a President,
a Secretary and a Treasurer and may elect a Chairman of the Board, Vice Chairman
of the Board, one or more Vice Presidents, or assistant officers. Any two or
more offices may be held by the same person.
4.2 CHAIRMAN OF THE BOARD. The Board of Directors may elect from its
members a Chairman of the Board, who shall preside at all meetings of the Board
of Directors and stockholders as provided herein. The Chairman of the Board
shall be the chief executive officer of the Corporation and shall have the
authority to execute bonds, mortgages or other contracts under the seal of the
Corporation. The Chairman of the Board shall perform such other duties as may be
prescribed by the Board of Directors.
4.3 VICE CHAIRMAN OF THE BOARD. The Board of Directors may elect from
its members a Vice Chairman of the Board, who shall, in the absence of the
Chairman of the Board, preside at all meetings of the Board of Directors and
stockholders. The Vice Chairman shall at all times report to and remain under
the direction of the Chairman of the Board, or the Board of Directors, unless
specific executive authority is otherwise delegated. The Chairman of the Board
shall perform such other duties as may be prescribed by the Board of Directors.
4.4 PRESIDENT. The President shall be responsible for administration of
the affairs of the Corporation, including general supervision of the policies
and financial affairs of the Corporation. He or she shall have the authority to
execute bonds, mortgages or other contracts or agreements under the seal of the
Corporation. If the Board of Directors shall not have elected a Chairman of the
Board, or if the Chairman of the Board is not available
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to serve, the President shall preside at all meetings of the stockholders and,
if he or she is a director, at all meetings of the Board of Directors of the
Corporation. The President shall have the authority to institute or defend legal
proceedings when the directors are deadlocked.
4.5 SECRETARY. The Secretary shall keep minutes of all meetings of the
stockholders and directors and have charge of the minute books, stockholder
records and seal of the Corporation and shall perform such other duties and have
such other powers as may from time to time be delegated to him or her by the
President or the Board of Directors.
4.6 TREASURER. The Treasurer shall be charged with the management of
the financial affairs of the Corporation. He or she shall in general perform all
of the duties incident to the office of treasurer and such other duties as may
from time to time be assigned to him or her by the President or the Board of
Directors.
4.7 VICE PRESIDENTS. The Vice Presidents, if any, shall perform such
duties as are generally performed by vice presidents with equivalent
restrictions on title, if any, and shall perform such other duties and exercise
such other powers as the President or majority of the Board of Directors shall
request or delegate. In the absence of the President or in the event of his
death or inability to act, the Vice President shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President; provided, however, that if there is
more than one Vice President, any Vice President shall have the authority to
execute bonds, mortgages or other contracts or agreements under the seal of the
Corporation, subject to all the restrictions upon the President relating to such
functions, but all other duties of the President shall be performed by the Vice
President designated at the time of his election, or in the absence of any
designation, then in order of election (or if more than one Vice President is
elected at the same meeting, in the order in which they are listed in the
resolution electing them), and when so acting shall have all the powers of and
be subject to all the restrictions upon the President.
4.8 OTHER OFFICERS. The Board of Directors or the President may
appoint such other officers, assistant officers and agents as the Board of
Directors or the President may determine. Any Vice President so appointed shall
perform such duties as are generally performed by elected Vice Presidents with
equivalent restrictions on title, if any. Any other officers or assistant
officers so appointed shall perform such duties as are generally performed by
the elected officers or assistant officers having the same title.
4.9 REMOVAL OF OFFICERS. Any officer, assistant officer or agent
elected or appointed by the Board of Directors may be removed by the Board
whenever, in its judgment, the best interests of the Corporation will be served
thereby. Any officer or assistant officer appointed by the President may be
removed by the President or the Board of Directors whenever in his or its
judgment the best interests of the Corporation will be served thereby.
4.10 VACANCIES. Any vacancy, however occurring, in any office
may be filled by the Board of Directors.
ARTICLE FIVE
SEAL
5.1 SEAL. The seal of the Corporation shall be in such form as the
Board of Directors may from time to time determine. In the event it is
inconvenient to use such a seal at any time, the words "Corporate Seal" or the
word "Seal" in parentheses or scroll accompanying the signature of an officer
signing for and on behalf of the Corporation shall be the seal of the
Corporation. The seal shall be in the custody of the Secretary and affixed by
him or her on the stock certificates and such other papers as may be directed by
law, by these Bylaws or by the Board of Directors.
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ARTICLE SIX
CONTRACTS AND CHECKS
6.1 CONTRACTS. To the extent permitted by applicable state
regulations, and except as otherwise prescribed by these Bylaws with respect to
certificates for shares, the Board of Directors may authorize any officer,
employee, or agent of the Corporation to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation. Such
authority may be general or confined to specific instances.
6.2 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by one or more officers, employees or agents of
the Corporation in such manner as shall from time to time be determined by the
Board of Directors.
ARTICLE SEVEN
CERTIFICATES FOR SHARES AND THEIR TRANSFER
7.1 CERTIFICATES FOR SHARES. Certificates representing shares of
capital stock of the Corporation shall be in such form as shall be determined by
the Board of Directors. Such certificates shall be signed by the Chairman of the
Board, Vice Chairman of the Board, President or by any Vice President of the
Corporation authorized by the Board of Directors and by the Treasurer or an
assistant treasurer, or the Secretary or an assistant secretary, and sealed with
the corporate seal or a facsimile thereof. The signatures of such officers upon
a certificate may be facsimiles if the certificate is manually signed on behalf
of a transfer agent or a registrar, other than the Corporation itself or one of
its employees. Each certificate for shares of capital stock shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for the like
number of shares shall have been surrendered and cancelled except that in the
case of a lost or destroyed certificate, a new certificate may be issued upon
such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
7.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW
CERTIFICATES. The Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
7.3 TRANSFER OF SHARES. To the extent permitted by applicable state
statutes or regulations: (a) transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books; (b) authority for
such transfer shall be given only by the holder of record thereof or by his
legal representative, who shall furnish proper evidence of such authority, or by
his attorney thereunto authorized by power of attorney duly executed and filed
with the Corporation; (c) such transfer shall be made only on surrender for
cancellation of the certificate for such shares; and (d) the person in whose
name shares of capital stock stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes.
ARTICLE EIGHT
FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall end on the 30th day of
September of each year. The Corporation shall be subject to an annual audit as
of the end of its fiscal year by independent public accountants appointed by and
responsible to the Board of Directors.
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ARTICLE NINE
DIVIDENDS
Dividends upon the stock of the Corporation, subject to the provisions
of the Articles of Incorporation, may be declared by the Board of Directors at
any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or in stock.
ARTICLE TEN
INDEMNIFICATION AND INSURANCE
10.1 GENERAL. The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the Corporation's request as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
10.2 DERIVATIVE ACTIONS. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he or she is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the Corporation's request as a director, officer, employee or agent of another
corporation or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made
under this Section if such person shall be adjudged to be liable to the
Corporation, unless and only to the extent that the applicable Florida court or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the appropriate Florida court or such other
court shall deem proper.
10.3 EXPENSES. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2,
or in defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
10.4 REQUIREMENTS. Indemnification under Sections 10.1 and 10.2
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 10.1 and 10.2.
Such determination shall be made:
(1) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to such action,
suit or proceeding;
(2) if such a quorum is not obtainable, or even if obtainable,
by majority vote of a committee duly designated by the Board
consisting solely of two or more disinterested directors;
(3) by independent legal counsel in a written opinion; or
(4) by the stockholders.
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10.5 ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the Corporation as authorized by this
Article. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
10.6 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this Article 10 shall not be exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under these
Bylaws, agreement, the vote of stockholders or disinterested directors, the
Articles of Incorporation, statute or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office.
10.7 ADDITIONAL INDEMNIFICATION. Notwithstanding this Article 10, but
in addition thereto, each person who is or was a director, officer, employee or
agent of the Corporation (including the heirs, executors, administrators and
estate of such person), or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or other
enterprise, shall be indemnified by the Corporation as of right to the fullest
extent permitted or authorized by the present and future laws of Florida and any
other applicable laws against any liability, cost, payment or expense asserted
against, or paid or incurred by, him or her in his or her capacity as such a
director, officer, employee or agent.
10.8 INSURANCE. The Corporation shall purchase and maintain insurance,
if such insurance is reasonably available to the Corporation, on behalf of any
person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article 10.
ARTICLE ELEVEN
AMENDMENTS
These Bylaws may be amended at any time by either the Board of
Directors or the stockholders, but the Board of Directors may not amend or
repeal any bylaw adopted by the stockholders if the stockholders specifically
provide that such bylaw is not subject to amendment or repeal by the directors.
ARTICLE TWELVE
CONTROL SHARE ACQUISITIONS
Section 607.0902 of the Florida Business Corporation Act shall not
apply to control share acquisitions (as that term is defined in such section) of
shares of the Corporation.
9
STATEMENT OF DESIGNATION
OF
8% NONCUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES 1996
OF
BANKUNITED FINANCIAL CORPORATION
BankUnited Financial Corporation (the "Corporation"), a corporation
organized and existing under the Florida Business Corporation Act, in accordance
with the provisions of Section 607.0602 thereof and Article VI the Corporation's
Articles of Incorporation, DOES HEREBY CERTIFY:
That pursuant to authority conferred upon the Board of Directors by the
Articles of Incorporation of the Corporation, said Board of Directors acting at
a meeting thereof adopted resolutions providing for the issuance of 1,000,000
shares of the Corporation's Preferred Stock, $.01 par value, "8% Noncumulative
Convertible Preferred Stock, Series 1996," which resolutions are as follows:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by the Articles of Incorporation, the Board of
Directors does hereby provide for and authorize the issuance of 1,000,000 shares
of the Preferred Stock, $.01 par value, of the Corporation, of the presently
authorized but unissued shares of Preferred Stock (the "Preferred Stock") to be
designated "8% Noncumulative Convertible Preferred Stock, Series 1996" (the
"Series 1996 Preferred Stock"). The number of shares constituting the Series
1996 Preferred Stock may be increased or decreased from time to time by a vote
of not less than a majority of the Board of Directors of the Corporation then in
office; PROVIDED, that no decrease shall reduce the number of shares of the
Series 1996 Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
any outstanding options, rights or warrants to purchase Series 1996 Preferred
Stock or upon the conversion of any outstanding securities issued by the
Corporation convertible into shares of the Series 1996 Preferred Stock. The
voting powers, designations, preferences, and relative, participating, optional
or other special rights of the Series 1996 Preferred Stock authorized hereunder
and the qualifications, limitations and restrictions of such preferences and
rights are as follows:
1. DIVIDENDS.
(a) The holders of the Series 1996 Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors
out of funds of the Corporation legally available for payment,
noncumulative cash dividends, payable quarterly in arrears, at the rate
of $1.20 per share per annum. Dividends, when declared on the Series
1996 Preferred Stock, shall have accrued from the date of issuance or
thereafter, from the most recent date on which dividends were payable
and be payable quarterly on March 31, June 30, September 30 and
December 31 of each year (each a "Dividend Payment Date"), commencing
on December 31, 1996; PROVIDED, HOWEVER, that if any such day is a
non-business day, the Dividend Payment Date will be the next business
day. Each declared dividend shall be payable to holders of record as
they appear at the close of business on the stock books of the
Corporation on such record dates, not more than 30 calendar days and
not less than 10 calendar days preceding the Dividend Payment Date
therefor, as determined by the Board of Directors (each of such dates a
"Record Date"). Quarterly dividend periods (each a "Dividend Period")
shall commence on and include the first day of January, April, July and
October of each year and shall end on and include the day next
preceding the next following Dividend Payment Date. Dividends payable
on the Series 1996 Preferred Stock for any period greater or less than
a full Dividend Period shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends payable on the Series
1996 Preferred Stock for each full Dividend Period shall be computed by
dividing the annual dividend rate by four.
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(b) No full dividends shall be declared, paid or set apart for
payment on any series of Preferred Stock or other capital stock of any
series ranking, as to dividends or liquidation preference, on a parity
("Parity Stock") with the Series 1996 Preferred Stock during any
calendar quarter unless full dividends on the Series 1996 Preferred
Stock for the Dividend Period ending during such calendar quarter have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment. When
dividends are not so paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series 1996 Preferred Stock and
any other Parity Stock, dividends upon the Series 1996 Preferred Stock
and dividends on such other Parity Stock payable during such calendar
quarter shall be declared pro rata so that the amount of such dividends
so payable per share on the Series 1996 Preferred Stock and such other
Parity Stock shall in all cases bear to each other the same ratio that
full dividends for the then-current calendar quarter on the shares of
Series 1996 Preferred Stock (which shall not include any accumulation
in respect of unpaid dividends for prior Dividend Periods) and full
dividends, including required or permitted accumulations, if any, on
shares of such other Parity Stock, bear to each other. The Corporation
shall not declare, pay or set apart funds for any dividend or other
distribution, other than in shares of capital stock ranking junior to
the Series 1996 Preferred Stock as to dividends or liquidation
preference ("Junior Stock"), on any shares of Junior Stock or
repurchase, redeem or otherwise acquire through a sinking fund or
otherwise, or set apart funds for the repurchase, redemption or other
acquisition of, any shares of Junior Stock (except by conversion into
or exchange for Junior Stock), unless (i) all declared and unpaid
dividends with respect to the Series 1996 Preferred Stock have been
paid, or funds have been set apart for payment of such dividends and
(ii) the Corporation has declared a cash dividend on the Series 1996
Preferred Stock at the annual dividend rate for the then-current
Dividend Period and sufficient funds have been set apart for payment of
such dividends. Holders of the Series 1996 Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock,
in excess of declared noncumulative dividends, as herein provided, on
the Series 1996 Preferred Stock. No interest or sum of money in lieu of
interest shall be payable in respect of any declared dividend payment
or payments on the Series 1996 Preferred Stock which may be in arrears.
As used herein, the phrase "set apart" in respect of the payment of
dividends shall require deposits of any funds in a bank or trust
company in a separate deposit account maintained for the benefit of the
holders of the Series 1996 Preferred Stock.
2. REDEMPTION.
(a) The shares of Series 1996 Preferred Stock shall be
redeemable by the Corporation, in whole, or in part, at any time and
from time to time at a price of $15.00 per share, plus an amount equal
to declared but unpaid dividends, if any, with respect to Dividend
Periods preceding the date fixed for redemption (the "Redemption
Date"), if the Corporation's Series I Class A Common Stock, $.01 par
value (the "Class A Common Stock"), shall have a closing price which is
at least 120% of the Conversion Price (as defined below) for any 20 out
of 30 consecutive trading days ending within five days of the giving of
notice of redemption as provided for below. In addition, the Series
1996 Preferred Stock shall be redeemable by the Corporation in whole or
in part, at any time and from time to time on or after July 1, 1998 at
the following per share prices during the twelve month period beginning
July 1:
YEAR REDEMPTION PRICE
---- ----------------
1998 $16.20
1999 15.96
2000 15.72
2001 15.48
2002 15.24
2003 and thereafter 15.00
plus, in each case, an amount equal to any declared but unpaid
dividends, if any, with respect to Dividend Periods preceding the
Redemption Date.
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(b) In the event that fewer than all the outstanding shares of
the Series 1996 Preferred Stock are to be redeemed as permitted by this
Section 2, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be
determined by lot or PRO RATA as may be determined by the Board of
Directors or by such other method as may be approved by the Board of
Directors that is required to conform to any rule or regulation of any
stock exchange or automated quotation system upon which the shares of
the Series 1996 Preferred Stock may at the time be listed.
(c) Notice of redemption of the Series 1996 Preferred Stock,
specifying the Redemption Date, the redemption price and the place of
redemption, shall be given by first class mail to each holder of record
of the shares to be redeemed at his or her address of record and by
publication in THE WALL STREET JOURNAL. In the case of a redemption in
whole, notice will be given once, not less than 30 nor more than 60
calendar days prior to the Redemption Date. In the case of a partial
redemption, the notice shall also specify the aggregate number of
shares of the Series 1996 Preferred Stock to be redeemed and the
aggregate number of shares of the Series 1996 Preferred Stock that
shall be outstanding after such partial redemption and the mailed
notice shall specify the fact that a new certificate or certificates
representing any unredeemed shares shall be issued without cost to a
holder. The notice of partial redemption shall be given twice: the
first notice shall be given not more than 75 days nor less than 60 days
prior to the Redemption Date; and the second notice shall be given at
least 20 days after the first notice but not less than 30 days prior to
the Redemption Date.
(d) Notice of redemption of shares of the Series 1996
Preferred Stock having been given as provided in Section 2(c), then
unless the Corporation shall have defaulted in providing for the
payment of the redemption price and all declared and unpaid dividends
with respect to Dividend Periods preceding the Redemption Date, all
rights of the holders thereof (except the right to receive the
redemption price and all declared and unpaid dividends with respect to
Dividend Periods preceding the Redemption Date) shall cease with
respect to such shares and such shares shall not, after the Redemption
Date, be deemed to be outstanding and shall not have the status of
Preferred Stock. In case fewer than all the shares represented by any
such certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(e) Any shares of Series 1996 Preferred Stock which shall at
any time have been redeemed or converted shall, after such redemption
or conversion, have the status of authorized but unissued shares of
Preferred Stock, without designation as to series until such shares are
once more designated as part of a particular series by the Board of
Directors.
(f) Shares of the Series 1996 Preferred Stock are not
subject or entitled to the benefit of a sinking fund.
3. CONVERSION.
(a) Subject to and upon compliance with the provisions of this
Section 3, the holder of any shares of the Series 1996 Preferred Stock
shall have the right, at his or her option, at any time and from time
to time prior to redemption, to convert the shares into a number of
fully paid and nonassessable shares (calculated as to each conversion
to the nearest 1/100th of a share) of the Corporation's Series I Class
A Common Stock, $.01 par value (the "Class A Common Stock"), equal to
$15.00 for each share surrendered for conversion divided by the
Conversion Price (as defined in Section 3(d) below).
(b) (i) In order to exercise the conversion privilege, the
holder of each share of the Series 1996 Preferred Stock to be converted
shall surrender the certificate representing such share to the
Corporation's transfer agent for the Series 1996 Preferred Stock with
the Notice of Election to Convert on the back of said Certificate duly
completed and signed. Unless the shares issuable on conversion are to
be issued in the same name as the name in which the shares of the
Series 1996 Preferred Stock are registered, each share surrendered
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for conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or his or
her duly authorized attorney and by funds in an amount sufficient to
pay any transfer or similar tax. The holders of shares of the Series
1996 Preferred Stock at the close of business on a Record Date shall be
entitled to receive any dividend declared payable on those shares for
the corresponding Dividend Period on the applicable Dividend Payment
Date, notwithstanding the conversion of the shares after the Record
Date.
(ii) As promptly as practicable after the surrender
by a holder of the certificates for shares of the Series 1996 Preferred
Stock in accordance with this Section 3, the Corporation shall issue
and shall deliver to the holder at the office of the transfer agent, or
otherwise upon such holder's written order, a certificate or
certificates for the number of full shares of Class A Common Stock
issuable upon the conversion of those shares in accordance with the
provisions of this Section 3, and any fractional interest in respect of
a share of Class A Common Stock arising upon the conversion shall be
settled as provided in Section 3(c) below. In case less than all of the
shares of the Series 1996 Preferred Stock represented by a certificate
are to be converted by a holder, upon such conversion the Corporation
shall issue and deliver to the holder at the office of the transfer
agent, or otherwise upon such holder's written order, a certificate or
certificates for the shares of Series 1996 Preferred Stock not
converted.
(iii) Each conversion shall be deemed to have been
effected immediately prior to the close of business on the date on
which all of the conditions specified in Section 3(b) hereof shall have
been satisfied, and, the person or persons in whose name or names any
certificate or certificates for shares of Class A Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Class A Common Stock represented
by those certificates at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date,
unless the stock transfer books of the Corporation shall be closed on
that date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of business
on the next succeeding day on which such stock transfer books are open,
but such conversion shall be at the Conversion Price in effect on the
date upon which all of the conditions specified in Section 3(b) hereof
shall have been satisfied. All shares of Class A Common Stock delivered
upon conversion of the Series 1996 Preferred Stock will upon delivery
be duly and validly issued and fully paid and nonassessable, free of
all liens and charges and not subject to any preemptive rights. Upon
the surrender of certificates representing shares of the Series 1996
Preferred Stock to be converted, the shares shall no longer be deemed
to be outstanding and all rights of a holder with respect to the shares
surrendered for conversion shall immediately terminate except the right
to receive the Class A Common Stock or other securities, cash or other
assets as herein provided.
(c) No fractional shares or securities representing fractional
shares of Class A Common Stock shall be issued upon conversion of the
Series 1996 Preferred Stock. Any fractional interest in a share of
Class A Common Stock resulting from conversion of a share of the Series
1996 Preferred Stock shall be paid in cash (computed to the nearest
cent) based on the Current Market Price (as defined in Section 3(d)(iv)
below) of the Class A Common Stock on the Trading Day (as defined in
Section 3(d)(iv) below) next preceding the day of conversion. If more
than one share shall be surrendered for conversion at one time by the
same holder, the number of whole shares of Class A Common Stock
issuable upon the conversion shall be computed on the basis of the
aggregate Liquidation Preference (as such term is defined in Section 6
below) of the shares of the Series 1996 Preferred Stock so surrendered.
(d) The "Conversion Price" per share of the Series 1996
Preferred Stock shall be $9.00, subject to adjustment from time to time
as follows:
(i) In case the Corporation shall (1) pay a dividend
or make a distribution on its Class A Common Stock in shares of its
Class A Common Stock, (2) subdivide its outstanding Class A Common
Stock into a greater number of shares, or (3) combine its outstanding
Class A Common Stock into a smaller number of shares, the Conversion
Price in effect immediately prior to such event shall be
proportionately adjusted so
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that the holder of any share of the Series 1996 Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the
number and kind of shares of capital stock of the Corporation which he
would have been entitled to receive had the share been converted
immediately prior to the record date for such action, or, if no record
date has been established in connection with such event, the effective
date for such action. An adjustment made pursuant to this Section
3(d)(i) shall become effective immediately after the record date in the
case of a dividend or distribution except as provided in Section
3(d)(vii) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination. If, as a
result of an adjustment made pursuant to this Section 3(d)(i), the
holder of any shares of Series 1996 Preferred Stock thereafter
surrendered for conversion shall become entitled to receive shares of
two or more classes of capital stock of the Corporation, the Board of
Directors of the Corporation (whose determination shall be conclusive
and shall be described in a resolution adopted thereto) shall determine
the allocation of the adjusted Conversion Price between or among shares
of such classes of capital stock. If any dividend or distribution is
not paid or made, the Conversion Price then in effect shall be
appropriately readjusted.
(ii) In case the Corporation shall issue rights or
warrants to all holders of its Class A Common Stock entitling them (for
a period expiring within 45 days after the record date mentioned below)
to subscribe for or purchase Class A Common Stock at a price per share
less than the Current Market Price (as defined in Section 3(d)(iv)
below) of the Class A Common Stock at the record date for the
determination of stockholders entitled to receive the rights or
warrants, the Conversion Price in effect immediately prior to such
record date shall be adjusted so that it shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the record date by a fraction of which the numerator shall be
the number of shares of Class A Common Stock outstanding on the record
date plus the number of shares of Class A Common Stock which the
aggregate offering price of the total number of shares of Class A
Common Stock so offered for subscription or purchase would purchase at
the Current Market Price at that record date, and of which the
denominator shall be the number of shares of Class A Common Stock
outstanding on the record date plus the number of additional shares of
Class A Common Stock for subscription or purchase. The adjustment
provided for in this Section 3(d)(ii) shall be made successively
whenever any such rights or warrants are issued, and shall become
effective immediately, except as provided in Section 3(d)(vii) below,
after such record date. In determining whether any rights or warrants
entitle the holder of the Class A Common Stock to subscribe for or
purchase shares of Class A Common Stock at less than the Current Market
Price, and in determining the aggregate offering price of the shares of
Class A Common Stock so offered, there shall be taken into account any
consideration received by the Corporation for such rights or warrants,
the value of such consideration, if other than cash, to be determined
by the Board (whose determination, if made in good faith, shall be
conclusive). If any or all of such rights or warrants are not so issued
or expire or terminate without having been exercised, the Conversion
Price then in effect shall be appropriately readjusted.
(iii) In case the Corporation shall distribute to all
holders of its Class A Common Stock any shares of capital stock of the
Corporation (other than Class A Common Stock) or evidences of
indebtedness or assets (excluding cash dividends or distributions paid
from retained earnings of the Corporation) or rights or warrants to
subscribe for or purchase any of its securities (excluding those
referred to in Section 3(d)(ii) above), then, in each such case, the
Conversion Price shall be adjusted so that it shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the date of the distribution by a fraction, the numerator of
which shall be the Current Market Price of the Class A Common Stock on
the record date mentioned below less the then fair market value (as
determined by the Board, whose determination, if made in good faith,
shall be conclusive) of that portion of the capital stock or assets or
evidences of indebtedness so distributed, or of the rights or warrants
so distributed, applicable to one share of Class A Common Stock, and
the denominator of which shall be the Current Market Price of the Class
A Common Stock on the record date. Such adjustment shall become
effective immediately, except as provided in Section 3(d)(vii) below,
after the record date for the determination of stockholders entitled to
receive such distribution. If any such distribution is not made or if
any or all of such rights or warrants expire or terminate without
having been exercised, the Conversion Price then in effect shall be
appropriately readjusted.
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(iv) For the purpose of any computation under this
Section 3, the "Current Market Price" of the Class A Common Stock at
any date shall be the average of the last reported sale prices per
share for the 30 consecutive Trading Days (as defined below) commencing
35 Trading Days before date of such computation. The last reported sale
price for each day shall be (1) the last reported sale price of the
Class A Common Stock on the Nasdaq National Market, or any similar
system of automated dissemination of quotations of securities prices
then in common use, if so quoted, or (2) if not quoted as described in
clause (1), the closing bid notation for the Class A Common Stock as
reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked quotations for the
Class A Common Stock on at least five of the ten preceding days, or (3)
if the Class A Common Stock is listed or admitted for trading on any
national securities exchange, the last sale price, or the closing bid
price if no sale occurred, of the Class A Common Stock on the principal
securities exchange on which the Class A Common Stock is listed. If the
Class A Common Stock is quoted on a national securities or central
market system, in lieu of a market or quotation system described above,
the last reported sale price shall be determined in the manner set
forth in clause (2) of the preceding sentence if bid and asked
quotations are reported but actual transactions are not, and in the
manner set forth in clause (3) of the preceding sentence if actual
transactions are reported. If none of the conditions set forth above is
met, the last reported sale price of the Class A Common Stock on any
day or the average of such last reported sale prices for any period
shall be the fair market value of such class of stock as determined by
a member firm of the New York Stock Exchange, Inc. selected by the
Corporation. As used herein the term "Trading Days" means (1) if the
Class A Common Stock is quoted on the Nasdaq National Market or any
similar system of automated dissemination of quotations of securities
prices, days on which trades may be made on such system, or (2) if not
quoted as described in clause (1), days on which quotations are
reported by the National Quotation Bureau, Incorporated, or (3) if the
Class A Common Stock is listed or admitted for trading on any national
securities exchange, days on which such national securities exchange is
open for business.
(v) No adjustment in the Conversion Price shall be
required unless such adjustment would require a change of at least one
percent in the Conversion Price; PROVIDED, HOWEVER, that any
adjustments which by reason of this Section 3(d)(v) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 3(d) shall
be made to the nearest cent or the nearest one hundredth of a share, as
the case may be.
(vi) Whenever the Conversion Price is adjusted, as
herein provided, the Corporation shall promptly file with its transfer
agent and with the principal securities exchange, if any, on which the
Series 1996 Preferred Stock is traded or, if traded over-the-counter,
with the Nasdaq National Market System an officers' certificate setting
forth the Conversion Price after the adjustment and setting forth a
brief statement of the facts requiring the adjustment, which
certificate shall be conclusive evidence of the correctness of the
adjustment. Promptly after delivery of the certificate, the Corporation
shall prepare a notice of the adjustment of the Conversion Price
setting forth the adjusted Conversion Price, the number of additional
shares of Class A Common Stock issuable upon conversion and the type
and amount, if any, of other property which would be received upon
conversion of the Series 1996 Preferred Stock, the facts upon which the
adjustment is based and the date on which the adjustment becomes
effective and shall mail the notice of such adjustment of the
Conversion Price to the holders of the Series 1996 Preferred Stock at
their addresses as shown on the stock books of the Corporation.
(vii) In any case in which this Section 3(d) provides
that an adjustment shall become effective immediately after a record
date for an event, the Corporation may defer until the occurrence of
the event (1) issuing to the holder of any share of the Series 1996
Preferred Stock converted after the record date and before the
occurrence of the event, the additional shares of Class A Common Stock
issuable upon the conversion by reason of the adjustment required by
the event over and above the Class A Common Stock issuable upon such
conversion before giving effect to the adjustment and (2) paying to the
holder any amount in cash in lieu of any fractional share pursuant to
Section 3(c) above.
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(e) (i) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights and all liens
and charges with respect to the issue or delivery thereof, out of the
aggregate of its authorized but unissued shares of Class A Common Stock
or its issued shares of Class A Common Stock held by its treasury, or
both, for the purpose of effective conversions of the Series 1996
Preferred Stock the full number of shares of Class A Common Stock
deliverable upon the conversion of all outstanding shares of the Series
1996 Preferred Stock not theretofore converted. For purposes of this
Section 3(e), the number of shares of Class A Common Stock which shall
be deliverable upon the conversion of all outstanding shares of the
Series 1996 Preferred Stock shall be computed as if at the time of
computation all of the outstanding shares were held by a single holder.
(ii) Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par value (if
any) of the shares of Class A Common Stock deliverable upon conversion
of the Series 1996 Preferred Stock, the Corporation will take any
corporate action which may, in the opinion of its counsel, be necessary
in order that the Corporation may validly and legally issue fully paid
and nonassessable shares of Class A Common Stock at the adjusted
Conversion Price.
(f) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of shares of Class A Common Stock or other securities on
conversion of the Series 1996 Preferred Stock pursuant hereto;
PROVIDED, HOWEVER, that the Corporation shall not be required to pay
any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Class A Common Stock or other securities
in a name other than that of the holder of the Series 1996 Preferred
Stock to be converted and no such issue or delivery shall be made
unless and until the person requesting the issue or delivery has paid
to the Corporation the amount of any such tax or has established, to
the satisfaction of the Corporation, that the tax has been paid.
(g) In case of any reclassification or similar change of
outstanding shares of Class A Common Stock (other than a change in par
value, or as a result of a subdivision or combination), or in case of
any consolidation of the Corporation with, or merger of the Corporation
with or into, any other entity that results in a reclassification,
change, conversion, exchange or cancellation of outstanding shares of
Class A Common Stock or any sale or transfer of all or substantially
all of the assets of the Corporation, each holder of shares of the
Series 1996 Preferred Stock then outstanding shall have the right
thereafter to convert the shares of the Series 1996 Preferred Stock
held by the holder into the kind and amount of securities, cash and
other property which the holder would have been entitled to receive
upon such reclassification, change, consolidation, merger, sale or
transfer if the holder had held the Class A Common Stock issuable upon
the conversion of the shares of the Series 1996 Preferred Stock
immediately prior to the reclassification, change, consolidation,
merger, sale or transfer and had such holder elected to receive the
consideration in the form and manner elected by the plurality of the
persons entitled to vote thereon. These provisions shall apply to
successive reclassifications, changes, consolidations, mergers, sales
or conveyances.
4. PREEMPTIVE RIGHTS. Shares of the Series 1996 Preferred Stock are not
entitled to any preemptive rights to acquire any unissued shares of any
capital stock of the Corporation, now or hereafter authorized, or any
other securities of the Corporation, whether or not convertible into
shares of capital stock of the Corporation or carrying a right to
subscribe to or acquire any such shares of capital stock. To the extent
preemptive rights are granted by the Corporation to the Parity Stock,
the Junior Stock or the Class A Common Stock, the Series 1996 Preferred
Stock shall be entitled to similar rights.
5. VOTING. Except as required by law, the shares of the Series
1996 Preferred Stock shall not have any voting powers, either general
or special, except as follows:
(a) Unless the vote or consent of the holders of a greater
number of shares is required by law, the approval of the holders of at
least 66-2/3% of all of the shares of the Series 1996 Preferred Stock
at the time outstanding given in person or by proxy, either in writing
or by a vote at a meeting called for that
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<PAGE>
purpose, on which matter the holders of shares of the Series 1996
Preferred Stock shall vote together as a separate class, shall be
necessary to (i) authorize, effect or validate any amendment,
alteration or repeal of or otherwise change any of the provisions of
the Articles of Incorporation of the Corporation or of any certificate,
amendatory or supplemental thereto, which amendment, alteration or
repeal would, if effected, materially and adversely affect the powers,
preferences, rights or privileges of the Series 1996 Preferred Stock or
(ii) create, authorize, issue or increase the authorized or issued
amount of any class or series of any equity securities of the
Corporation, or any warrants, options or other rights convertible or
exchangeable into any class or series of any equity securities of the
Corporation, ranking senior to the Series 1996 Preferred Stock either
as to payment of dividends or rights upon liquidation, winding-up or
dissolution of the Corporation.
(b) Notwithstanding anything to the contrary set forth herein,
the creation or issuance of Parity Stock or Junior Stock with respect
to the payment of dividends or distribution of assets upon liquidation
or an amendment that increases the number of authorized shares of
Series 1996 Preferred Stock or increases the number of authorized
shares of a series of Preferred Stock constituting Junior Stock or
Parity Stock shall not be considered to be a material and adverse
change to the terms of the Series 1996 Preferred Stock and shall not
require a vote or the consent of the holders of the Series 1996
Preferred Stock pursuant to Section 5(a) above. Amendments considered
to be an adverse change requiring a vote of the holders of Series 1996
Preferred Stock pursuant to Section 5(a) above shall include, but not
be limited to, those: which reduce the dividend rate on the Series 1996
Preferred Stock, cancel declared and unpaid dividends or change the
relative seniority rights of the holders of the Series 1996 Preferred
Stock as to the payment of dividends in relation to the holders of any
other capital stock of the Corporation; which reduce the amount payable
to the holders of Series 1996 Preferred Stock upon liquidation or
change the relative seniority of the liquidation preferences of the
holders of the Series 1996 Preferred Stock to the rights upon
liquidation of the holders of any other capital stock of the
Corporation; or which cancel or modify the conversion rights of the
Series 1996 Preferred Stock.
(c) The holders of Series 1996 Preferred Stock, if any Series
1996 Preferred Stock shall be outstanding, shall be entitled to vote
with the holders of the shares of Class A Common Stock, and not as a
separate class, to the same extent as the holders of the shares of
Class A Common Stock on any consolidation, merger, sale of all or
substantially all of the assets of the Corporation, reclassification,
capital reorganization or liquidation; PROVIDED that each share of
Series 1996 Preferred Stock shall be entitled to the same number of
votes that the holder would have had if such holder had converted his
shares of Series 1996 Preferred Stock into shares of Class A Common
Stock as of the record date for such meeting or solicitation of
consents in lieu of a meeting.
6. LIQUIDATION RIGHTS.
(a) Upon the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the holders of the shares of the
Series 1996 Preferred Stock shall be entitled to receive out of the
assets of the Corporation available for distribution to stockholders
under applicable law, before any payment or distribution of assets
shall be made on the Class A Common Stock or on any other class or
series of capital stock of the Corporation ranking junior to the Series
1996 Preferred Stock upon liquidation and subject to the rights of the
holders of any class or series of stock having preference with respect
to distributions upon liquidation (created pursuant to Section 5(a)
above) and the Corporation's general creditors, the amount of $15.00
per share (the "Liquidation Preference"), plus an amount equal to all
dividends declared and unpaid, without interest. The sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property and assets
of the Corporation shall not be deemed a dissolution, liquidation or
winding up of the Corporation for the purposes of this Section 6, nor
shall the merger or consolidation of the Corporation into or with any
other corporation or association or the merger or consolidation of any
other corporation or association into or with the Corporation, be
deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this Section 6; PROVIDED, HOWEVER, that
if the aggregate amount of cash that may be received in exchange for or
upon conversion of the Series 1996 Preferred Stock in connection with a
cash merger or other cash transaction would be less than the aggregate
liquidation preference of the
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Series 1996 Preferred Stock, then the holders of the Series 1996
Preferred Stock shall be entitled to the Liquidation Preference in
place of the aggregate amount of cash that may be received in exchange
for or upon conversion of the Series 1996 Preferred Stock in connection
with the cash merger or other cash transaction; and PROVIDED FURTHER,
that such cash merger or transaction shall not be considered a
liquidation, dissolution or winding up of the Corporation subject
otherwise to this Section 6(a).
(b) After the payment in cash (in New York Clearing House
funds or its equivalent) to the holders of the shares of the Series
1996 Preferred Stock of the full preferential amounts for the shares of
the Series 1996 Preferred Stock, as set forth in Section 6(a) above,
the holders of the Series 1996 Preferred Stock as such shall have no
further right or claim to any of the remaining assets of the
Corporation.
(c) In the event the assets of the Corporation available for
distribution to the holders of shares of the Series 1996 Preferred
Stock upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to Section 6(a)
above, no distribution shall be made on account of any shares of any
other series of Preferred Stock or any other class of capital stock of
the Corporation ranking on a parity with the shares of the Series 1996
Preferred Stock upon such liquidation, dissolution or winding up unless
proportionate amounts shall be paid on account of the shares of the
Series 1996 Preferred Stock, ratably, in proportion to the full amounts
to which holders of all such shares which are on a parity with the
shares of the Series 1996 Preferred Stock are respectively entitled
upon such dissolution, liquidation or winding up.
(d) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the Corporation shall,
within 10 days after the date the Board of Directors approves such
action, at least 20 days prior to any shareholders' meeting called to
approve such action or within 20 days after the commencement of any
involuntary proceeding, whichever is earliest, give each holder of the
Series 1996 Preferred Stock written notice of the proposed action. Such
written notice shall describe the material terms and conditions of the
proposed action. The Corporation shall not consummate any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation
before the expiration of 30 days after the mailing of such written
notice; PROVIDED, that any such 30 day period may be shortened upon the
written consent of the holders of all of the outstanding shares of the
Series 1996 Preferred Stock.
(e) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation that will involve the
distribution of assets other than cash, the Corporation shall promptly
engage competent independent appraisers to determine the value of the
assets to be distributed to the holders of shares of the Series 1996
Preferred Stock and the holders of Class A Common Stock. The
Corporation shall, upon receipt of such appraiser's valuation, give
prompt written notice to each holder of shares of the Series 1996
Preferred Stock of the appraiser's valuation.
7. RANK. The Series 1996 Preferred Stock shall rank, with respect to
classes and series of capital stock of the Corporation outstanding as
of the date of the filingof this resolution with the Florida Department
of State, on a parity with the 8% Noncumulative Convertible Preferred
Stock, Series 1993 and the 9% Noncumulative Perpetual Preferred Stock
and senior to the Class A Common Stock, the Class B Common Stock, the
Noncumulative Convertible Preferred Stock, Series B, the Noncumulative
Convertible Preferred Stock, Series C and the Noncumulative Convertible
Preferred Stock, Series C-II of the Corporation as to payment of
dividends and rights upon liquidation, dissolution or winding up of the
Corporation. Unless the Corporation shall have obtained the consent of
the holders as provided in Section 5 above, the Corporation shall not
issue any other series of Preferred Stock ranking senior to the Series
1996 Preferred Stock as to the payment of dividends or rights upon
liquidation, dissolution or winding up of the Corporation or any other
series of any equity securities ranking senior to the Series 1996
Preferred Stock as to the payment of dividends or rights upon
liquidation, dissolution or winding up of the Corporation. The
Corporation may issue shares of Preferred Stock or other capital stock
ranking junior to or on a parity with the Series 1996 Preferred Stock
as to the payment
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of dividends or rights upon liquidation, dissolution or winding up of
the Corporation. For purposes of this statement of designation, any
capital stock of any series or class of the Corporation shall be deemed
to rank:
(a) senior to the shares of the Series 1996 Preferred Stock,
as to dividends or upon liquidation, if the holders of such series or
class shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in preference or priority to the
holders of the shares of the Series 1996 Preferred Stock;
(b) on a parity with shares of the Series 1996 Preferred
Stock, as to dividends or upon liquidation, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices per
share or sinking fund provisions, if any, be different from those of
the Series 1996 Preferred Stock, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or liquidation
prices, without preferences or priority, one over the other, as between
the holders of such stock and the holders of shares of the Series 1996
Preferred Stock; and
(c) junior to shares of the Series 1996 Preferred Stock, as to
dividends or upon liquidation, if the holders of shares of the Series
1996 Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of
the Corporation, as the case may be, in preference or priority to the
holders of shares of such series or class.
8. NOTICE OF CERTAIN EVENTS. If:
(a) the Corporation shall declare a dividend (other
than a cash dividend) or distribution on its Class A Common Stock or
any Junior Stock; or
(b) the Corporation shall authorize the issuance to the
holders of the Class A Common Stock or any Junior Stock of rights or
warrants to subscribe for or purchase any shares of Class A Common
Stock or of any other subscription rights or warrants; or
(c) there shall be any reclassification of the Class A Common
Stock or any consolidation or merger, to which the Corporation is a
party, or any sale or transfer of all or substantially all the assets
of the Corporation; or
(d) there shall be a voluntary or an involuntary
dissolution, liquidation or winding up of the Corporation; or
(e) there shall be a redemption of the Series 1996
Preferred Stock, in whole or in part, pursuant to Section 2 above;
then the Corporation shall cause to be filed with the transfer agent,
if any, and shall cause to be mailed to the holders of shares of the
Series 1996 Preferred Stock at their addresses as shown on the stock
books of the Corporation, except as otherwise provided in Section 2(c)
above or Section 6(d) above, at least 10 days prior to the applicable
date hereinafter specified, a notice stating (1) the date on which a
record is to be taken for the purpose of the dividend, distribution or
rights or warrants, or, if a record is not to be taken, the date as of
which the holders of Class A Common Stock of record to be entitled to
the dividend, distribution or rights or warrants are to be determined,
(2) the date on which the reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Class A Common Stock of record shall be entitled to exchange their
shares of Class A Common Stock for cash, securities or other property
deliverable upon the reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up or (iii) the
Redemption Date and redemption price pursuant to
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Section 2 above. Failure to give any such notice or any defect in the
notice shall not affect the legality or validity of the proceedings
described in this Section 8.
9. REPORTS AND NOTICES. So long as any shares of the Series 1996
Preferred Stock shall be outstanding, the Corporation shall provide to
the holder or holders of such shares copies of all annual, quarterly
and other reports of the Corporation and copies of all stockholder
notices of the Corporation when and as furnished to the holders of the
Class A Common Stock.
H-11
STATEMENT OF DESIGNATION
OF
SERIES I CLASS A COMMON STOCK
AND
CLASS B COMMON STOCK
OF
BANKUNITED FINANCIAL CORPORATION
WHEREAS, pursuant to Article VI of the Articles of Incorporation of
BankUnited Financial Corporation (the "Corporation") as in effect on the date
hereof and Section 607.0602 of the Florida Business Corporation Act, the Board
of Directors of the Corporation is authorized, within limitations set forth
therein, (i) to divide the Corporation's Class A Common Stock, par value $.01
per share ("Class A Common Stock"), into series and fix and determine the
relative rights and preferences of the shares of any series so established, and
(ii) to fix and determine certain rights of the Corporation's Class B Common
Stock, par value $.01 per share ("Class B Stock"); and
WHEREAS, the Board of Directors desires to (i) establish a series of the
Class A Common Stock, designating such series "Series I Class A Common Stock,"
(ii) allocate 20,000,000 shares of the authorized Class A Common Stock to the
Series I Class A Common Stock, (iii) fix and determine the relative rights and
preferences of the shares of the Series I Class A Common Stock, and (iv) fix and
determine the conversion rights of the Class B Stock;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors (i) hereby
allocates a portion of the Class A Common Stock to a series thereof designated
Series I Class A Common Stock, and fixes and determines the relative rights and
preferences of the Series I Class A Common Stock, as set forth in Section I
below, and (ii) hereby sets forth in Section II below the conversion rights of
the Class B Stock.
I. DESIGNATION, ALLOCATION AND RIGHTS OF SERIES I CLASS A COMMON
STOCK.
(1) DESIGNATION AND ALLOCATION. 20,000,000 of the 30,000,000
shares of Class A Common Stock authorized by the Articles of Incorporation
of the Corporation hereby are determined to be and shall be of a series
designated as Series I Class A Common Stock (herein called "Series I Class
A Common Stock").
(2) DIVIDENDS. The holders of shares of the Series I Class A
Common Stock shall be entitled to receive, when, as, and if declared by the
Board of Directors and out of the assets of the Corporation which are by
law available for the payment of dividends to the holders of common stock,
a per share dividend equal to 110% of the amount per share of any dividend
declared on Class B Stock (the "Dividend Rate"). The Dividend Rate shall be
subject to adjustment as provided by the formula set forth in subsection
I(3) of this resolution.
(3) DIVIDEND RATE ADJUSTMENTS. The Dividend Rate shall be
subject to adjustment from time to time as follows:
(a) If the Corporation shall (i) pay a dividend in and on
shares of its Series I Class A Common Stock or Class B Stock, (ii)
subdivide its outstanding shares of Series I Class A Common Stock
or Class B Stock into a greater number of shares, (iii) combine
its outstanding shares of Series I Class A Common Stock or Class B
Stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of Series I Class A Common Stock or
Class B Stock any shares of its capital stock, then the Dividend
Rate in effect immediately prior thereto shall be adjusted so that
the holder of Series I Class A Common Stock or Class B Stock
entitled to receive a dividend upon his or her Series I Class A
Common Stock or Class B Stock after the record date fixing
stockholders to be affected by such event shall be entitled to
receive upon declaration of a dividend on common stock such
dividend which such holder would have been entitled to receive
after the happening of such event had such dividend been declared
and paid immediately prior to such record date. Such adjustment
shall be made whenever any of such events shall happen, and shall
also be effective retroactively as to the happening of any such
event between such record date and the payment of dividends on the
common stock of the Corporation.
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(b) (i) If the Corporation has issued Series I Class A
Common Stock which is not listed on a national securities
exchange or traded over-the-counter by a nationally
recognized securities firm or association and the
Corporation shall issue rights or warrants to the holders
of any of its capital stock entitling them to subscribe
for or purchase shares of common stock at a price per
share less than the Book Value Per Share (as defined in
subsection II(4)(b)(iii) of this resolution) of such
common stock at the record date mentioned below; or
(ii) If the Corporation has issued Series I Class
A Common Stock which is listed on a national securities
exchange or traded over-the-counter by a nationally
recognized securities firm or association, and the
Corporation shall issue rights or warrants to the holders
of its capital stock entitling them to subscribe for or
purchase shares of common stock at a price per share less
than the current market price per share (as defined in
subsection II(4)(e) of this resolution) of such common
stock at the record date mentioned below; then, in either
of the above events, the Dividend Rate shall be adjusted
by multiplying the Dividend Rate existing immediately
prior to such event by a fraction as provided below:
(A) If the Class B Stock may be
subscribed for or purchased at less than the Book Value
Per Share or the current market price per share, as the
case may be, then the numerator of such fraction shall be
the number of shares of Class B Stock outstanding on the
date of issuance of such rights or warrants plus the
number of additional shares of Class B Stock offered for
subscriptions or purchase, and the denominator of which
shall be the number of shares of Class B Stock outstanding
on the date of issuance of such rights or warrants plus
the number of shares of Class B Stock which the aggregate
offering price of the total number of shares of Class B
Stock so offered would purchase based on current Book
Value Per Share at the record date mentioned below or
current market price per share (as defined in subsection
II(4)(e) of this resolution), as the case may be.
(B) If the Series I Class A Common Stock
may be subscribed for or purchased at less than the Book
Value Per Share or the current market price per share, as
the case may be, then the numerator of such fraction shall
be the number of shares of Series I Class A Common Stock
outstanding on the date of issuance of such rights or
warrants plus the number of shares of Series I Class A
Common Stock which the aggregate offering price of the
total number of shares of Series I Class A Common Stock so
offered would purchase based on Book Value Per Share at
the record date mentioned below or current market price
per share (as defined in subsection II(4)(e) of this
resolution), as the case may be, and the denominator of
which shall be the number of shares of Series I Class A
Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of additional shares of
Series I Class A Common Stock offered for subscription or
purchase.
(iii) An adjustment to the Dividend Rate as
provided in subsections I(3)(b)(ii)(A) or (B), above,
shall be made whenever such rights or warrants are issued,
and also shall be effective retroactively as to dividends
declared on the common stock of the Corporation between
the record date for the determination of stockholders
entitled to receive such rights or warrants and the date
such rights or warrants are issued.
(c) No adjustment in the Dividend Rate shall be required
unless such adjustment would require an increase or decrease of at
least 2% in such Dividend Rate; provided, however, that any
adjustments which by reason of this subsection I(3)(c) are not
required to be made, and are not made, shall be carried forward
and taken into account in any subsequent adjustment.
(4) VOTING.
(a) Except as otherwise provided in the Articles of
Incorporation of the Corporation, or as provided in any resolution
of the Board of Directors or the stockholders of the Corporation,
the Series I Class A Common Stock, the Class B Stock, and the
Preferred Stock shall vote together as a single class on all
matters submitted to the stockholders of the Corporation for a
vote. In any such vote, each share of Series I Class A Common
Stock is entitled to cast 1/10 of the vote that each share of
Class B Stock is entitled to cast.
(b) Notwithstanding the provision contained in subsection
I(4)(a) above, in the event of any consolidation of the
Corporation with or merger of the Corporation into another
corporation, or in the event of any sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or
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<PAGE>
substantially all of the property or assets of the Corporation to
another corporation, then, in any such consolidation, merger,
sale, conveyance, exchange or transfer, if the consideration per
share (as adjusted consistent with the provisions of Sections I
and II hereof) to be received for the shares of Series I Class A
Common Stock differs in any substantial kind or amount from the
per share (as adjusted consistent with the provisions of Sections
I and II hereof) consideration to be received for Class B Stock,
the majority of the holders of the outstanding Series I Class A
Common Stock, by a separate vote of the holders of the Series I
Class A Common Stock, must approve such consolidation, merger,
sale, conveyance, exchange or transfer; provided, however, that
nothing in this subsection I(4)(b) shall in any way grant any
rights to the holders of the Series I Class A Common Stock in
connection with the sale of any shares of the capital stock of the
Corporation by a stockholder of the Corporation to any person or
entity other than the Corporation. Notwithstanding any other
provision of this subsection I(4)(b), the receipt by the holders
of the Series I Class A Common Stock of limited voting stock in an
acquiring company shall not be deemed to be consideration which
differs in any substantial respect from that received by the
holders of the Class B Stock, provided such limited voting common
stock bears substantially the same relative rights and privileges
to the acquiring company's voting stock as the Series I Class A
Common Stock bears to the Class B Stock.
II. CONVERSION RIGHTS OF CLASS B STOCK.
(1) CONVERSION. Subject to and upon compliance with the provisions
of this resolution, the holder of any shares of Class B Stock may
at such holder's option convert any such shares of Class B Stock
into such number of fully paid and non-assessable shares of Series
I Class A Common Stock as are issuable pursuant to the formula set
forth in subsections II(3), (4) and (5) of this resolution.
No adjustment shall be made for dividends on any Series I
Class A Common Stock that shall be issuable because of the
conversion of shares of Class B Stock, but all dividends accrued
and unpaid on any Class B Stock up to and including the dividend
payment date immediately preceding the date of conversion shall
constitute a debt of the Corporation payable to the converting
holder.
(2) MECHANICS OF CONVERSION. The surrender of any Class B Stock
for conversion shall be made by the holder thereof to the
Corporation at its principal office and such holder shall give
written notice to the Corporation at said office that such holder
elects to convert such Class B Stock in accordance with the
provisions hereof. Such notice also shall state the name or names
(with addresses) in which the certificate or certificates for
Series I Class A Common Stock, which shall be issuable on such
conversion, shall be issued. Subject to the provisions of
subsection II(1) hereof, every such notice of election to convert
shall constitute a contract between the holder of such shares and
the Corporation, whereby such holder shall be deemed to subscribe
for the number of shares of Series I Class A Common Stock which
such holder will be entitled to receive upon such conversion and,
in payment and satisfaction of such subscription, to surrender
such Class B Stock and to release the Corporation from all
obligations thereon, and whereby the Corporation shall be deemed
to agree that the surrender of such Class B Stock and the
extinguishment of its obligations thereon shall constitute full
payment for the Series I Class A Common Stock so subscribed for
and to be issued upon such conversion.
As soon as practicable after the receipt of such notice
and the shares of Class B Stock, the Corporation shall issue and
shall deliver to the person for whose account such shares of Class
B Stock were so surrendered, or on such holder's written order, a
certificate or certificates for the number of full shares of
Series I Class A Common Stock issuable upon the conversion of such
shares of Class B Stock and a check or cash for the payment (if
any) to which such person is entitled pursuant to subsection II(5)
hereof, together with a certificate or certificates representing
the shares of Class B Stock, if any, which are not to be
converted, but which constituted part of the Class B Stock
represented by the certificates or certificates surrendered by
such person. Such conversion shall be deemed to have been effected
on the date on which the Corporation shall have received such
notice and such Class B Stock, and the person or persons in whose
name or names any certificate or certificates for Series I Class A
Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder or holders of record
of the shares represented thereby.
(3) BASIC CONVERSION RATE. The initial rate at which holders may
convert Class B Stock into Series I Class A Common Stock
("Conversion Rate") shall be one share of Series I Class A Common
Stock for each share of Class B Stock surrendered for conversion.
(4) CONVERSION RATE ADJUSTMENT. The Conversion Rate shall
be subject to adjustment from time to time as follows:
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<PAGE>
(a) If the Corporation shall (i) pay a dividend in and on
shares of its Series I Class A Common Stock or its Class B Stock,
(ii) subdivide its outstanding shares of Series I Class A Common
Stock or its Class B Stock into a greater number of shares, (iii)
combine its outstanding shares of Series I Class A Common Stock or
its Class B Stock into a smaller number of shares, or (iv) issue
by reclassification of its shares of Series I Class A Common Stock
or its Class B Stock any shares of its capital stock, then the
Conversion Rate in effect immediately prior thereto shall be
adjusted so that the holder of Class B Stock surrendered for
conversion after the record date fixing stockholders to be
affected by such event shall be entitled to receive upon
conversion the number of such shares of the Corporation which such
holder would have been entitled to receive after the happening of
such event had such shares been converted immediately prior to
such record date. Such adjustment, if applicable, shall be made
whenever any of such events shall happen, and shall also be
effective retroactively as to shares converted between such record
date and the date of the happening of any such event.
(b) (i) If the Series I Class A Common Stock is not listed
on a national securities exchange or traded over-the-counter by a
nationally recognized securities firm or association, and the
Corporation issues rights or warrants (a) to the holders of its
Series I Class A Common Stock entitling them to subscribe for or
purchase shares of Series I Class A Common Stock or (b) to the
holders of its Class B Stock entitling them to subscribe for or
purchase shares of Class B Stock, in either case at a price per
share less than the Book Value Per Share (as defined below) of
Series I Class A Common Stock at the record date mentioned below;
or
(ii) If the Series I Class A Common Stock is listed on a
national securities exchange or traded over-the-counter by a
nationally recognized securities firm or association, and the
Corporation issued rights or warrants (a) to the holders of its
Series I Class A Common Stock entitling them to subscribe for or
purchase shares of Series I Class A Common Stock or (b) to the
holders of its Class B Stock entitling them to subscribe for or
purchase shares of Class B Stock, in either case at a price per
share less than the current market price per share of Series I
Class A Common Stock (as defined in subsection II(4)(e) of this
resolution) at the record date mentioned below;
then, in either of the above events in which the Series I Class A
Common Stock rights or warrants are issued at a price per share
below Book Value Per Share or current market price per share, as
the case may be, the number of shares of Series I Class A Common
Stock into which each share of Class B Stock shall thereafter be
convertible shall be determined by multiplying the number of
shares of Series I Class A Common Stock into which such shares of
Class B Stock were theretofore convertible by a fraction, the
numerator of which shall be the number of shares of Series I Class
A Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of additional shares of Series I Class
A Common Stock offered for subscription or purchase, and the
denominator of which shall be the number of shares of Series I
Class A Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares of Series I Class A
Common Stock which the aggregate offering price of the total
number of shares so offered would purchase based on Book Value Per
Share at the record date mentioned below or current market price
per share (as defined in subsection II(4)(e) of this resolution),
as the case may be. If the Corporation issues Class B Stock rights
or warrants at a price per share below Book Value Per Share or
current market price per share, as the case may be, then the above
formula shall be used except that when calculating the fraction in
such formula, Class B Stock shall be substituted for Series I
Class A Common Stock. Such adjustment shall be made whenever such
rights or warrants are issued, and shall also be effective
retroactively as to shares of Class B Stock converted between the
record date for the determination of stockholders entitled to
receive such rights or warrants and the date such rights or
warrants are issued.
(iii) The term "Book Value Per Share," as used herein,
shall mean such amount which is determined by (a) reducing total
stockholders' equity by the amount contributed to capital in
exchange for all classes of stock other than common stock,
adjusted to reflect any proportion of the Corporation's net income
or loss from operations since payment for such shares of stock
other than common stock (such adjustment arrived at by adding all
shares of outstanding stock, adjusted to reflect any conversion
ratios, the resulting number to be the denominator of a fraction
the numerator of which is to be the number of shares of the
Corporation's stock other than common stock, adjusted to reflect
conversion ratios, the resulting fractions to be multiplied by the
net income or loss from the Corporation's operations since payment
for the stock other than common stock); and (b) dividing the
resulting amount by the number of shares of common stock
outstanding, adjusted to compensate for any common stock to common
stock conversion ratio other than one to one.
(c) If the Corporation shall distribute to the holders of
its Series I Class A Common Stock or Class B Stock evidence of its
indebtedness or assets (excluding cash dividends or distributions
made out of
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<PAGE>
current or retained earnings) or rights or warrants to subscribe
other than as referred to in subsection II(4)(b) of this
resolution, then, when such distribution is made to the holders of
Series I Class A Common Stock the number of shares of Series I
Class A Common Stock into which each share of Class B Stock shall
thereafter be convertible shall be determined by multiplying the
number of shares of Series I Class A Common Stock into which such
shares of Class B Stock was theretofore convertible by a fraction,
the numerator of which shall be the Book Value Per Share of Series
I Class A Common Stock at the record date mentioned below or, if
the Series I Class A Common Stock is listed on a national
securities exchange or traded over-the-counter by a nationally
recognized securities firm or association, the market price per
share of Series I Class A Common Stock (as defined in subsection
II(4)(e) of this resolution) on the date of such distribution, and
the denominator of which shall be such Book Value Per Share of the
Series I Class A Common Stock at the record date mentioned below
or such current market price per share of the Series I Class A
Common Stock, as the case may be, less the then fair market value
(as determined by the Board of Directors of the Corporation, whose
determination shall be conclusive) of the portion of the assets,
evidence of indebtedness, subscription rights or warrants so
distributed applicable to one share of the Series I Class A Common
Stock. If the Corporation distributes such evidence of
indebtedness or assets to the holders of the Class B Stock, the
above formula shall be used except that when calculating the
fraction in such formula, Class B Stock shall be substituted for
Series I Class A Common Stock. Such adjustment shall be made
whenever any such distribution is made, and shall also be
effective retroactively as to the shares converted between the
record date for the determination of stockholders entitled to
receive such distribution and the date such distribution is made.
(d) In the event of any consolidation of the Corporation
with, or the merger of the Corporation into, another corporation,
or in the event of any sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all
or substantially all of the property or assets of the Corporation
to another corporation, or in the case of any reorganization of
the Corporation, the holder of each share of Class B Stock then
outstanding shall have the right thereafter to convert such share
into the kind and amount of shares of stock and other securities
and property, including cash, which would have been deliverable to
such holder upon such consolidation, merger, sale, conveyance,
exchange, transfer or reorganization if such holder had converted
such holder's shares of Class B Stock into Series I Class A Common
Stock immediately prior to such consolidation, merger, sale,
conveyance, exchange, transfer or reorganization. In any such
event, effective provision shall be made in the instrument
effecting or providing for such consolidation, merger, sale,
conveyance, exchange, transfer or reorganization so that the
provisions set forth herein for the protection of the conversion
rights of the shares of Class B Stock shall thereafter be
applicable, as nearly as may be practicable, in relation to any
shares of stock or other securities or property, including cash,
deliverable after such consolidation, merger, sale, conveyance,
exchange, transfer or reorganization upon the conversion. The
provisions of this subsection II(4)(d) shall similarly apply to
successive consolidations, mergers, sales, conveyances, exchanges,
transfers and reorganizations.
(e) For purposes of computation under Sections I and II of
this resolution, the current market price per share of Series I
Class A Common Stock at any date shall be deemed to be the average
of the daily closing prices for the 20 consecutive business days
immediately prior to the day in question. The closing price for
each day shall be the last reported sales price, regular way, on
the principal national securities exchange upon which the Series I
Class A Common Stock is listed, or in case no such reported sale
takes place on such day, the average of the reported closing bid
and asked prices, regular way, on such national securities
exchange, or if the Series I Class A Common Stock is not then
listed on a national securities exchange, the average of the
closing prices or, if applicable, closing bid and asked prices in
the over-the-counter market as furnished by the nationally
recognized securities firm or association selected from time to
time by the Corporation for that purpose.
(f) No adjustments in the Conversion Rate shall be
required unless such adjustment would require an increase or
decrease of at least 2% in such Conversion Rate; provided,
however, that any adjustments which by reason of this subsection
II(4)(f) are not required to be made, and are not made, shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this subsection II(4)(f) shall
be made to the nearest cent or one-hundredth of a share, as the
case may be.
(5) FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares shall be issued upon the conversion of any
shares. If more than one share shall be surrendered for conversion
at one time by the same holder, the number of full shares issuable
upon conversion thereof shall be computed on the basis of the
aggregate number of such shares so surrendered. If the conversion
of any shares results in a fraction, an amount equal to such
fraction multiplied by the current market price (determined as
provided in subsection II(4)(e) of
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this resolution) of the Series I Class A Common Stock on the
business day next preceding the date of conversion shall be paid
to such holder in cash by the Corporation; or if the Series I
Class A Common Stock is not listed on a national securities
exchange or traded over-the-counter by a nationally recognized
securities firm, an amount equal to such fraction multiplied by
the Book Value Per Share of the Class B Stock on the business day
next preceding the date of conversion shall be paid to such holder
in cash by the Corporation.
(6) TAX. The issue of stock certificates on conversion of shares
shall be made free of any tax in respect of such issue. The
Corporation shall not, however, be required to pay any tax which
may be payable in respect of any transfer involved in the issue
and delivery of stock in a name other than that of the holder of
the shares converted, and the Corporation shall not be required to
issue or deliver any such stock certificates unless and until the
person or persons requesting the issuance thereof shall have paid
to the Corporation the amount of any such tax or shall have
established to the satisfaction of the Corporation that such tax
has been paid.
(7) POWER RESERVED BY THE BOARD OF DIRECTORS. If in any case a
state of facts occurs wherein in the opinion of the Board of
Directors, the other provisions of this Section II are not
strictly applicable, or if strictly applicable, would not fairly
protect the conversion rights of the Class B Stock in accordance
with the essential intent and principles of such provisions, then
the Board of Directors shall make an adjustment in the application
of such provisions in accordance with such essential intent and
principles so as to protect such conversion rights as aforesaid.
(8) RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available out of its authorized Series I Class A
Common Stock the full number of shares of Series I Class A Common
Stock deliverable upon the conversion of all outstanding shares of
Class B Stock and shall take all such corporate action as may be
required from time to time in order that it may validly and
legally issue fully paid and non-assessable shares of Series I
Class A Common Stock upon conversion of the Class B Stock.
(9) STATUS OF CONVERTED SHARES. Shares of Class B Stock
converted shall assume the status of authorized but unissued
shares of Class B Stock of the Corporation.
A-6
ARTICLES OF AMENDMENT
OF
BANKUNITED FINANCIAL CORPORATION
I.
The name of the corporation is BankUnited Financial Corporation (the
"Corporation")
II.
The amendment adopted (the "Amendment") amends of the Articles of
Incorporation of BankUnited Financial Corporation, so that as amended, said
Article IV shall provide in its entirety as follows:
"ARTICLE VI
CAPITAL STOCK
The total number of shares of all classes of stock that the Corporation
is authorized to issue is 43,000,000 shares, of which 30,000,000 shall be Class
A Common Stock, $.01 par value (the "Class A Common Stock"), 3,000,000 shall be
Class B Common Stock, $.01 par value (the "Class B Common Stock"), and
10,000,000 shall be Preferred Stock, $.01 par value (the "Preferred Stock"). No
holder of the Corporation's stock shall have any preemptive right to acquire the
Corporation's securities.
CLASS A COMMON STOCK. The maximum number of shares of Class A
Common Stock that the Corporation is authorized to have outstanding is
30,000,000 shares at a par value of $.01 per share. The Class A Common
Stock shall be a special class of stock issuable from time to time in
one or more series as specified in Section 607.0602 of the Florida
Business Corporation Act (or in such other manner as may be permitted
by law), as determined from time to time by the Board of Directors and
stated in the resolution or resolutions providing for the issuance of
such series of Class A Common Stock adopted by the Board of Directors
pursuant to authority hereby vested in it, each such series to be
appropriately designated, prior to the issuance of any shares thereof,
by some distinguishing letter, number, or title. The Board of Directors
is hereby expressly granted authority to fix the authorized number of
shares of each series of common stock, and to fix the terms of such
series, including, but not limited to, the following:
(a) the rate or manner of payment of dividends;
(b) whether shares may be redeemed and, if so, the
redemption price and the terms and conditions of redemption;
(c) the amount payable upon shares in the event of
voluntary or involuntary liquidation;
(d) sinking fund provisions, if any, for the redemption
or purchase of shares;
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(e) the terms and conditions, if any, on which shares
may be converted;
(f) voting rights, if any; and
(g) the other special rights, if any, and the
qualifications, limitations or restrictions thereof, of the shares of
such series.
The designation of each particular series of Class A Common Stock and
its terms in respect of the foregoing particulars shall be fixed and
determined by the Board of Directors in any manner permitted by law and
stated in the resolution or resolutions providing for the issuance of
such shares adopted by the Board of Directors pursuant to authority
hereby vested in it, before any shares of such series are issued. The
Board of Directors may from time to time increase (but not above the
total number of authorized shares of the class) the number of shares of
any series of Class A Common Stock already created by providing that
any unissued Class A Common Stock shall constitute part of such series,
or may decrease (but not below the number of shares thereof then
outstanding) the number of shares of any series of Class A Common Stock
already created by providing that any unissued shares previously
assigned to such series shall no longer constitute part thereof. The
Board of Directors is hereby empowered to classify or reclassify any
unissued Class A Common Stock by fixing or altering the terms thereof
in respect of the above-mentioned particulars and by assigning the same
to an existing or newly created series from time to time before the
issuance of such shares.
For purposes of determining whether a non-voting series of
Class A Common Stock shall be entitled to vote as a class pursuant to
Section 607.1004 of the Florida Business Corporation Act (or any
successor section or statute hereinafter enacted) on an amendment to
the Corporation's Articles of Incorporation, an amendment that
increases the total number of authorized shares of Class A Common Stock
shall not be considered to be an adverse change to the terms of any
individual series of Class A Common Stock and shall not require a vote
or the consent of the holders of any such series of Class A Common
Stock.
Set forth in Appendix A hereto is the Statement of Designation
setting forth the terms of the Series I Class A Common Stock.
CLASS B COMMON STOCK. The maximum number of shares of Class B
Common Stock that the Corporation is authorized to have outstanding is
3,000,000 shares at a par value of $.01 per share. Holders of Class B
Common Stock are entitled to vote on all questions required by law on
the basis of one vote per share and there shall be no cumulative
voting. The shares of Class B Common Stock shall be convertible into
shares of other classes of capital stock of the Corporation in such
manner as may be provided by the Board of Directors by resolution.
Set forth in Appendix A hereto is the Statement of Designation
setting forth the conversion rights of the Class B Common Stock.
PREFERRED STOCK. The maximum number of shares of Preferred
Stock that the Corporation is authorized to have outstanding is
10,000,000 shares at a par value of $.01 per share. The Preferred Stock
may be issued from time to time in one or more series as specified in
Section 607.0602 of the Florida Business Corporation Act (or in such
other manner as may be permitted by law), as determined from time to
time by the Board of Directors and stated in the resolution or
resolutions providing for the issuance of such series of Preferred
Stock adopted by the Board of Directors pursuant to authority hereby
vested in it, each such series to be appropriately designated, prior to
the issuance of any shares thereof, by some distinguishing letter,
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<PAGE>
number, or title. The Board of Directors is hereby expressly granted
authority to fix the authorized number of shares of each series of
Preferred Stock, and to fix the terms of such series, including, but
not limited to, the following:
(a) the rate or manner of payment of dividends;
(b) whether shares may be redeemed and, if so, the
redemption price and the terms and conditions of redemption;
(c) the amount payable upon shares in the event of
voluntary or involuntary liquidation;
(d) sinking fund provisions, if any, for the redemption
or purchase of shares;
(e) the terms and conditions, if any, on which shares
may be converted;
(f) voting rights, if any; and
(g) the other special rights, if any, and the
qualifications, limitations or restrictions thereof, of the shares of
such series.
The designation of each particular series of Preferred Stock and its
terms in respect of the foregoing particulars shall be fixed and
determined by the Board of Directors in any manner permitted by law and
stated in the resolution or resolutions providing for the issuance of
such shares adopted by the Board of Directors pursuant to authority
hereby vested in it, before any shares of such series are issued. The
Board of Directors may from time to time increase (but not above the
total number of authorized shares of the class) the number of shares of
any series of Preferred Stock already created by providing that any
unissued Preferred Stock shall constitute part of such series, or may
decrease (but not below the number of shares thereof then outstanding)
the number of shares of any series of Preferred Stock already created
by providing that any unissued shares previously assigned to such
series shall no longer constitute part thereof. The Board of Directors
is hereby empowered to classify or reclassify any unissued Preferred
Stock by fixing or altering the terms thereof in respect of the
above-mentioned particulars and by assigning the same to an existing or
newly created series from time to time before the issuance of such
shares.
For purposes of determining whether a non-voting series of
Preferred Stock shall be entitled to a vote as a class pursuant to
Section 607.1004 of the Florida Business Corporation Act (or any
successor section or statute hereinafter enacted) on an amendment to
the Corporation's Articles of Incorporation, an amendment that
increases the total number of authorized shares of Preferred Stock
shall not be considered to be an adverse change to the terms of any
individual series of Preferred Stock and shall not require a vote or
the consent of the holders of any such series of Preferred Stock.
Set forth in Appendices B, C, D, E, F and G hereto are the
Statements of Designation setting forth the terms of the Noncumulative
Convertible Preferred Stock, Series A; Noncumulative Convertible
Preferred Stock, Series B; Noncumulative Convertible Preferred Stock,
Series C; Noncumulative Convertible Preferred Stock, Series C-II; 8%
Noncumulative Convertible Preferred Stock, Series 1993; and 9%
Noncumulative Perpetual Preferred Stock, respectively."
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<PAGE>
III.
The stockholders of the Corporation adopted the amendment at the
Special Meeting of Stockholders of the Corporation held on October 29, 1996.
IV.
The holders of the Corporation's Series I Class A Common Stock, $.01
par value (the "Class A Common Stock"), Class B Common Stock, $.01 par value
(the "Class B Common Stock"), and Noncumulative Convertible Preferred Stock,
Series B, $.01 par value (the "Series B Preferred Stock"), the Corporation's
voting capital stock, were entitled to vote together on the Amendment. In
addition, the holders of the Class A Common Stock and the Class B Common Stock
were each entitled to vote on the Amendment as a separate voting group. The
number of votes cast by the holders of the Class A Common Stock, the Class B
Common Stock, and the Series B Preferred Stock, voting together, and by the
holders of the Class A Common Stock and of the Class B Common Stock, each voting
as a separate voting group, was sufficient for approval of the Amendment.
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EXHIBIT 5.1
November 14, 1996
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
Ladies and Gentlemen:
We are acting as your counsel with regard to the issuance by
BankUnited Financial Corporation, a Florida corporation (the "Company"), of up
to 322,000 shares of its Series I Class A Common Stock, $.01 par value (the
"Class A Common Stock"), pursuant to Post Effective Amendment No. 1 to Form S-4
(Registration No. 333- 13211) on Form S-8 (the "Registration Statement") to be
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). The Class A Common Stock will be
issued pursuant to the provisions of the BankUnited Financial Corporation Stock
Option Plan for Former Suncoast Employees (the "Stock Option Plan").
We are familiar with the relevant documents and materials used in
preparing the Registration Statement. Based on our review of such relevant
documents and materials, and of such other documents and materials as we have
deemed necessary and appropriate, we are of the following opinion:
The shares of Class A Common Stock, when issued pursuant to the
provisions of the Stock Option Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving such opinion, we do not thereby admit that we
are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/STUZIN AND CAMNER, PROFESSIONAL ASSOCIATION
----------------------------------------------
Stuzin and Camner, Professional Association
EXHIBIT 23.1
[PRICE WATERHOUSE]
The Board of Directors
BankUnited Financial Corporation
We consent to the incorporation herein by reference in this Registration
Statement on Form S-8 of our report dated October 27, 1995 appearing on Page F-2
of BankUnited Financial Corporation's Annual Report on Form 10-K/A for the year
ended Septembet 30, 1995.
Miami, Florida
November 14, 1996
