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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
BANKUNITED FINANCIAL CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 65-0377773
- ---------------------------------- ----------------------
(State of other jurisdicition of (I.R.S. Employer
incorporation or organization) Identification Number)
255 Alhambra Circle, Coral Gables, Florida 33134
- ------------------------------------------ ----------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12 (b) of the act: None
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant to
General Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the act:
8% Noncumulative Convertible Preferred Stock, Series 1996
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Item 1. Description of Registrant's Securities to be Registered
The information set forth under the caption "Description of BankUnited
Capital Stock - Description of New BankUnited Preferred Stock" in the
prospectus contained in the Registrant's Registration Statement on Form S-4
file no. 333-13211 is incorporated herein by reference.
Item 2. Exhibits
1. Form of certificate for the Series 1996 Preferred Stock.
2. Proposed Statement of Designation of the Series 1996 Preferred
Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
BANKUNITED FINANCIAL CORPORATION
DATE: November 6, 1996 By: /s/ Samuel A. Milne
------------------------------------
Samuel A. Milne
Executive Vice President and
Chief Financial Officer
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BANKUNITED FINANCIAL CORPORATION
FORM 8-A
INDEX TO EXHIBITS
Exhibit No.
1 Form of certificate for the Series 1996 Preferred Stock
2 Proposed Statement of Designation of the Series 1996 Preferred
Stock
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EXHIBIT 1
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THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
NUMBER BANKUNITED SHARES
FINANCIAL
BKU_____________ CORPORATION ___________________
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 066528 40 0
ORGANIZED UNDER THE LAWS OF THE STATE OF FLORIDA
8% NONCUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES 1996
$.01 Par Value
THIS CERTIFIES THAT
is the registered holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF 8% NONCUMULATIVE CONVERTIBLE
PREFERRED STOCK, SERIES 1996, OF
BANKUNITED FINANCIAL CORPORATION
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed.
This certificate is not valid unless countersigned and registered by the
Transfer Agent and Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
/s/ Marc D. Jacobson [CORPORATE SEAL] /s/ Alfred R. Camner
SECRETARY CHAIRMAN OF THE BOARD,
CHIEF EXECUTIVE OFFICER
AND PRESIDENT
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
AUTHORIZED SIGNATURE
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NOTICES
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND
WITHOUT CHARGE A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS,
AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS AND SERIES AUTHORIZED TO BE
ISSUED, THE VARIATIONS IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE
SHARES OF EACH SUCH CLASS AND SERIES SO FAR AS THE SAME HAVE BEEN FIXED AND
DETERMINED, AND THE AUTHORITY OF THE DIRECTORS TO FIX AND DETERMINE THE
RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES AND SERIES. ANY SUCH
REQUEST SHALL BE ADDRESSED TO THE SECRETARY OF THE CORPORATION.
FOR CONVERSION USE ONLY
NOTICE OF ELECTION TO CONVERT TO SERIES I CLASS A COMMON STOCK
The undersigned hereby irrevocably elects to convert __________ shares of
the 8% Noncumulative Convertible Preferred Stock, Series 1996, represented by
this certificate into shares of Series I Class A Common Stock of the
Corporation (as such shares may be constituted on the conversion date) in
accordance with the provisions of the Corporation's Certificate of
Incorporation, as amended, and the Certification of Designation, Preferences,
Rights and Limitations of the shares represented hereby.
Date:_______________ ________________________________________
Signature
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- ____________________ Custodian ____________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
___________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received ____________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ shares
of the stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated ___________________
_______________________________________________________________
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME WRITTEN UPON THE FACE OF THE CERTIFICATE IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: ______________________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17A0-16.
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EXHIBIT 2
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STATEMENT OF DESIGNATION FOR 8% NONCUMULATIVE
CONVERTIBLE PREFERRED STOCK, SERIES 1996
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, to divide the Corporation's Preferred Stock, par value $.01 per share
into series and fix and determine the preferences, limitations, and relative
rights of the shares of any series so established;
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") of the Corporation 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
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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:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
1998 $16.20
1999 15.96
2000 15.72
2001 15.48
2002 15.24
2003 and thereafter 15.00
</TABLE>
plus, in each case, an amount equal to any declared but unpaid
dividends, if any, with respect to Dividend Periods preceding the
Redemption Date.
(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
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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 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 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.
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(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 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
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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
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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.
(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
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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.
(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),
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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 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
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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 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
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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 filing of 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
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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 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
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(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 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.
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