SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-4/A
ISSUER TENDER OFFER STATEMENT
(Pursuant to Section 13(e)(1) of the Securities Exchange Act of 1934)
(Amendment No. 1)
BANKUNITED FINANCIAL CORPORATION
(Name of the Issuer)
BANKUNITED FINANCIAL CORPORATION
(Name of Person(s) Filing Statement)
9% NONCUMULATIVE PERPETUAL PREFERRED STOCK
(Title of Class of Securities)
06652B 30 1
(CUSIP Number of Class of Securities)
Samuel A. Milne
Chief Financial Officer
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
(305) 569-2000
(Name, Address, and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Person(s) Filing Statement)
Copy to:
Marsha D. Bilzin, Esq.
Stuzin and Camner, P.A.
550 Biltmore Way, Suite 700
Coral Gables, Florida 33134
(305) 442-4994
July 16, 1997
(Date Tender Offer First Published, Sent or Given to Security Holders)
----------------------
CALCULATION OF FILING FEE
===============================================================================
Transaction valuation Amount of filing fee
- -------------------------------------------------------------------------------
$11,787,500.00 $2,357.50
===============================================================================
[ ] Check box if any part of the fee is offset as provided by Rule 0-11 (a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $2,357.50
Form or Registration No.: Not applicable
Filing Party: Not applicable
Date Filed: Not applicable
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This Amendment No. 1 amends and supplements the Rule 13-E4 Issuer
Tender Offer Statement on Schedule 13E-4 dated July 16, 1997 (the "Schedule
13E-4"), filed by BankUnited Financial Corporation, a Florida corporation (the
"Company"), in connection with the Company's offer to purchase any and all of
its outstanding shares of 9% Noncumulative Perpetual Preferred Stock, par value
$.01 per share, liquidation preference $10.00 per share (the "Shares"), at
$10.25 per share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated July 16, 1997 (the "Offer
to Purchase") and the related Letter of Transmittal (which together with the
Offer to Purchase, constitutes the "Offer"), copies of which were previously
filed as Exhibits (a)(1) and (a)(2) to the Schedule 13E-4, respectively, and
incorporated by reference therein. Terms defined in the Schedule 13E-4 and not
separately defined herein shall have the meaning specified in the Schedule
13E-4.
The following information amends the information previously included in
the Schedule 13E-4.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Form of Offer to Purchase, dated July 16, 1997.
(a)(7) Form of Letter to Shareholders of the Company from Alfred R.
Camner, Chairman of the Board, Chief Executive Officer and
President of the Company, dated August 11, 1997.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: August 11, 1997
/s/ SAMUEL A. MILNE
--------------------------------------------
Name: Samuel A. Milne
Title: Executive Vice President and Chief
Financial Officer
3
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
(a)(1) Form of Offer to Purchase, dated July 16, 1997
(a)(7) Form of Letter to Shareholders of the Company from Alfred R.
Camner, Chairman of the Board, Chief Executive Officer and
President of the Company, dated August 11, 1997.
Schedule 13E-4 Exhibit (a)(1)
BANKUNITED FINANCIAL CORPORATION
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF ITS OUTSTANDING SHARES OF
9% NONCUMULATIVE PERPETUAL PREFERRED STOCK
AT $10.25 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON FRIDAY, AUGUST 15, 1997, UNLESS THE OFFER IS
EXTENDED.
BankUnited Financial Corporation, a Florida corporation (the
"Company"), is offering to purchase any and all of its outstanding shares of 9%
Noncumulative Perpetual Preferred Stock (the "Shares"), at $10.25 per Share.
net to the seller in cash, upon the terms and subject to the conditions set
forth herein and in the related Letter of Transmittal (which together constitute
the "Offer").
Shares tendered and purchased by the Company will not be entitled to
the regular quarterly cash dividend in respect of any dividend period after June
30, 1997.
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
SECTION 9.
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED
IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
NEITHER THE COMPANY NOR ANY OF ITS DIRECTORS OR EXECUTIVE OFFICERS MAKES ANY
RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER ALL OR ANY SHARES.
EACH SHAREHOLDER MUST MAKE HIS OR HER OWN DECISION AS TO WHETHER TO TENDER
SHARES AND, IF SO, HOW MANY SHARES TO TENDER. DIRECTORS AND EXECUTIVE OFFICERS
OF THE COMPANY AND THEIR AFFILIATES OWN AN AGGREGATE OF 14,300 SHARES, AND THE
COMPANY HAS BEEN ADVISED THAT ALL OF THESE PERSONS HAVE INDICATED THEIR
INTENTION TO TENDER THEIR SHARES PURSUANT TO THE OFFER.
The Shares trade on the NASDAQ National Market System ("NASDAQ NMS")
under the symbol "BKUNO." As of the close of business on July 14, 1997, the bid
price of the Shares as reported on the NASDAQ NMS was $10.25 per Share.
SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
Questions or requests for assistance or for additional copies of
this Offer to Purchase, the Letter of Transmittal or other tender offer
materials may be directed to the Information Agent at the address and telephone
number set forth on the back cover of this Offer to Purchase.
July 16, 1997
<PAGE>
IMPORTANT
Any shareholder desiring to tender all or any portion of his or her
Shares should either (1) complete and sign the Letter of Transmittal or a
photocopy thereof in accordance with the instructions in the letter of
Transmittal, mail or deliver it and any other required documents to American
Stock Transfer & Trust Company (the "Depositary"), and either deliver the
certificates for Shares to the Depositary along with the Letter of Transmittal
or deliver such Shares pursuant to the procedure for book-entry transfer set
forth under "Book-Entry Transfer' in Section 6 hereof or (2) request his or her
broker, dealer, commercial bank, trust company or nominee to effect the
transaction for him or her. A shareholder whose Shares are registered in the
name of a broker, dealer, commercial bank, trust company or nominee must contact
such broker, dealer, commercial bank, trust company or nominee if he or she
desires to tender such Shares. Any shareholder who desires to tender Shares and
whose certificates for such Shares are not immediately available, or who cannot
comply in a timely manner with the procedure for book-entry transfer, should
tender such Shares by following the procedures for guaranteed delivery set forth
under "Guaranteed Delivery" in Section 6 hereof.
NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF
OF THE COMPANY AS TO WHETHER SHAREHOLDERS SHOULD TENDER SHARES PURSUANT TO THE
OFFER. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED HEREIN
OR IN THE LETTER OF TRANSMITTAL. IF GIVEN OR MADE, SUCH RECOMMENDATION AND SUCH
INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY.
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<TABLE>
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TABLE OF CONTENTS
SECTION PAGE
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SUMMARY...............................................................................................................i
INTRODUCTION..........................................................................................................1
SPECIAL FACTORS.......................................................................................................2
I. Purpose of the Offer; Certain Effects of the Offer; Plans of the Company
After the Offer...........................................................................................2
2. Certain Federal Income Tax Consequences...................................................................3
3. Fairness of the Offer; Reports and Opinions...............................................................6
4. Certain Legal Matters; Regulatory and Foreign Approvals; No Appraisal Rights..............................7
THE OFFER.............................................................................................................7
5. Number of Shares; Expiration Date; Extension of the Offer.................................................7
6. Procedure for Tendering Shares............................................................................8
7. Withdrawal Rights.........................................................................................9
8. Acceptance for Payment of Shares and Payment of Purchase Price...........................................10
9. Certain Conditions of the Offer..........................................................................11
10. Price Range of Shares; Dividends; Trading Volume.........................................................13
11. Certain Information Concerning the Company...............................................................13
12. Source and Amount of Funds...............................................................................17
13. Transactions and Agreements Concerning the Shares and Other Securities
of the Company...........................................................................................17
14. Extension of Tender Period; Termination; Amendments......................................................18
15. Fees and Expenses........................................................................................18
16. Miscellaneous............................................................................................19
Directors and Executive Officers of the Company .............................................................Schedule A
</TABLE>
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SUMMARY
This general summary is provided solely for the convenience of
holders of Shares and is qualified in its entirety by reference to the full text
of and the more specific details contained in this Offer to Purchase and the
related Letter of Transmittal and any amendments hereto and thereto. Capitalized
terms used in this summary without definition shall have the meaning ascribed to
such terms in the Offer to Purchase.
<TABLE>
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<S> <C>
The Company............................................ BankUnited Financial Corporation, a Florida corporation.
The Shares............................................. Shares of the Company's 9% Noncumulative Perpetual Preferred Stock,
par value $.01 per share, liquidation preference $10.00 per share.
Number of Shares Sought................................ 1,150,000 (all of the Shares outstanding).
Purchase Price......................................... $10.25 per Share, net to the seller in cash.
Expiration Date of Offer............................... Friday, August 15, 1997, at 5.00 p.m., New York City time, unless
extended by the Company.
How to Tender Shares................................... See Section 6. For further information, call the Information Agent or
consult your broker for assistance.
Withdrawal Rights...................................... Tendered Shares may be withdrawn at any time until the Expiration Date
of the Offer and, unless previously purchased, after September 10, 1997.
See Section 7.
Market Price of shares................................. On July 14, 1997, the bid price of the Shares on the NASDAQ NMS was
$10.25 per Share. See Section 10.
Dividends.............................................. Shares tendered and purchased by the Company will not be entitled to the
regular quarterly cash dividend in respect of any dividend period after
June 30, 1997. See Section 10.
Purpose of Offer....................................... The Company is making the Offer because it believes that, given the
current market price of the Shares and the opportunity for the Company
to replace the Shares with indebtedness, in the form of trust subsidiary
borrowings, that has a lower after-tax cost, the purchase of the Shares
pursuant to th economically attractive to the Company. In addition, the
Offer gives holders of Shares the opportunity to sell their Shares
without the usual transaction costs associated with a market sale. See
Section 1.
Certain Effects of offer............................... The Company's purchase of Shares pursuant to the Offer will reduce the
number of holders of shares and the number of shares that might
otherwise trade publicly, and depending upon the number of Shares so
purchased, could adversely affect the liquidity and market value of the
remaining Shares held by the public, or result in the Shares no longer
being eligible for listing on the NASDAQ NMS.
Stock Transfer Tax..................................... None, except as provided in Instruction 6 of the Letter of transmittal.
Payment Date........................................... As promptly as practicable after the Expiration Date of the Offer.
Further Information.................................... Any questions, requests for assistance or requests for additional copies
of this Offer to Purchase, the Letter of Transmittal or other tender offer
materials may be directed to Shareholder Communications Corporation,
17 State Street, New York, NY 10004, Tel: (800) 733-8481, Ext. 481
(toll free).
</TABLE>
i
<PAGE>
To the Holders of 9% Noncumulative Perpetual Preferred Stock of BankUnited
Financial Corporation:
INTRODUCTION
BankUnited Financial Corporation, a Florida corporation (the
"Company"), is offering to purchase any and all of its outstanding shares of 9%
Noncumulative Perpetual Preferred Stock, par value $.01 per share, liquidation
preference $10.00 per share (the "Shares"), at $10.25 per Share (the "Purchase
Price"), net to the seller in cash, upon the terms and subject to the conditions
set forth herein and in the related Letter of Transmittal (which together
constitute the "Offer").
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE
SECTION 9.
Tendering shareholders will not be obligated to pay brokerage
commissions, solicitation fees or, subject to Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the Company. The
Company will pay all charges and expenses of American Stock Transfer & Trust
Company (the "Depositary") and Shareholder Communications Corporation (the
"Information Agent") incurred in connection with the Offer. See Section 15.
HOWEVER, ANY TENDERING SHAREHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE AND SIGN
THE SUBSTITUTE FORM W-9 THAT IS INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE
SUBJECT TO A REQUIRED FEDERAL INCOME TAX BACKUP WITHHOLDING OF 31% OF THE GROSS
PAYMENTS PAYABLE TO SUCH SHAREHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER. SEE
SECTIONS 2 AND 6.
NEITHER THE COMPANY NOR ANY OF ITS DIRECTORS OR EXECUTIVE OFFICERS
MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER ALL OR ANY
SHARES. EACH SHAREHOLDER MUST MAKE HIS OR HER OWN DECISION AS TO WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER. DIRECTORS AND EXECUTIVE
OFFICERS OF THE COMPANY AND THEIR AFFILIATES OWN AN AGGREGATE OF 14,300 SHARES,
AND THE COMPANY HAS BEEN ADVISED THAT ALL OF THESE PERSONS HAVE INDICATED THEIR
INTENTION TO TENDER THEIR SHARES PURSUANT TO THE OFFER.
As of July 14, 1997, the Company had issued and outstanding
1,150,000 Shares, and there were 444 holders of record of Shares.
The bid price of the Shares is reported on the NASDAQ NMS under the
symbol "BKUNO." See Section 10. SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET
QUOTATIONS FOR THE SHARES.
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SPECIAL FACTORS
1. PURPOSE OF THE OFFER; CERTAIN EFFECTS OF THE OFFER; PLANS OF THE
COMPANY AFTER THE OFFER.
The Company is making the Offer because it believes that, given the
current market price of the Shares and the opportunity for the Company to
replace the Shares with indebtedness, in the form of trust subsidiary
borrowings, that has a lower after-tax cost, the purchase of the Shares pursuant
to the Offer is economically attractive to the Company. Additionally, the Offer
will enable the Company to reduce its annual administrative expenses in
connection with servicing the accounts of holders of the Shares. The Board of
Directors of the Company has authorized the Offer by a unanimous vote. Twelve of
the sixteen directors are not employees of the Company.
The Offer reflects the Company's continuing policy of seeking to
replace higher cost capital with lower cost capital. Dividends on the 1,150,000
Shares outstanding amount to $1,035,520 annually. If, for example, the aggregate
liquidation preference of the Shares, $11,500,000, were invested in the 9.60%
Cumulative Trust Preferred Securities (the "Trust Preferred Securities") of
BankUnited Capital II, a Company subsidiary, the aggregate annual distributions
on those Trust Preferred Securities, $1,104,000, would entitle the Company to a
tax deduction (at a 38% tax rate) of $419,520. This would represent an annual
net savings to the Company of $350,520 if the capital presently represented by
the Shares were instead represented by the Trust Preferred Securities.
Following the consummation of the Offer, the business and operations of
the Company will be continued by the Company substantially as they are currently
being conducted. The Company has no plans or proposals which relate to or would
result in: (a) the acquisition by any person of additional securities of the
Company or the disposition of securities of the Company; (b) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving the Company or any of its subsidiaries; (c) a sale or transfer of a
material amount of assets of the Company or any of its subsidiaries; (d) any
change in the present Board of Directors or management of the Company; (e) any
material change in the present dividend rate or policy, or indebtedness or
capitalization of the Company; (f) any other material change in the Company's
corporate structure or business; or (g) any change in the Company's Articles of
Incorporation or Bylaws or any actions which may impede the acquisition of
control of the Company by any person.
The Company's purchase of Shares pursuant to the Offer will reduce
the number of holders of Shares and the number of Shares that might otherwise
trade publicly, and depending upon the number of Shares so purchased, could
adversely affect the liquidity and market value of the remaining Shares held by
the public or result in the Shares no longer being eligible for listing on the
NASDAQ NMS. The extent of the public market for the Shares and the availability
of such quotations would, however, depend upon such factors as the number of
shareholders remaining at such time, the interest in maintaining a market in the
Shares on the part of securities firms, the possible termination of registration
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
described below, and other factors.
The Shares are currently registered under the Exchange Act.
Registration of the Shares under the Exchange Act may be terminated upon
application of the Company to the Securities and Exchange Commission (the
"Commission") if the Shares are held by fewer than 300 holders of record.
Termination of registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
holders of the Shares (although the Company would, among other things, remain
subject to the reporting obligations under the Exchange Act as a result of other
of its outstanding securities) and would make certain provisions of the Exchange
Act, such as the requirements of Rule 13e-3 thereunder with respect to "going
private" transactions, no longer applicable in respect of the Shares.
The Shares are redeemable by the Company at any time or from time to
time after September 30, 1998 at a price per Share of $10.00, plus all accrued
and unpaid dividends to the date of redemption. The Offer does not constitute a
notice of redemption of the Shares pursuant to the Company's Articles of
Incorporation, as amended, and owners of Shares are not under any obligation to
accept the Offer or to remit their Shares to the Company pursuant to the Offer.
The Company reserves the right to redeem Shares not purchased pursuant to the
Offer at any time after September 30, 1998. The Shares have no preemptive or
conversion rights and are not entitled to any sinking fund or similar fund. In
the event of a voluntary or involuntary liquidation, dissolution or winding up
of the Company, holders of the Shares are entitled to a liquidation preference
of $10.00 per Share, plus
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<PAGE>
all accrued and unpaid dividends thereon to the date of payment, prior to the
payment of any amounts to any holder of the Company's common stock.
Following the expiration of the Offer, the Company may, in its sole
discretion, determine to purchase any remaining Shares through privately
negotiated transactions, open market purchases or otherwise, on such terms and
at such prices as the Company may determine from time to time, the terms of
which purchases or offers could differ from those of the Offer, except that the
Company will not make any such purchases of Shares until the expiration of ten
business days after the termination of the Offer. Any possible future purchases
of Shares by the Company will depend on many factors, including the market price
of the Shares, the Company's business and financial position, alternative
investment opportunities available to the Company, the results of the Offer and
general economic and market conditions.
All Shares purchased by the Company pursuant to the Offer will be
reclassified to the status of authorized but unissued shares of the Company's
preferred stock.
NEITHER THE COMPANY NOR ANY OF ITS DIRECTORS OR EXECUTIVE OFFICERS
MAKES ANY RECOMMENDATION TO ANY SHAREHOLDER AS TO WHETHER TO TENDER ALL OR ANY
SHARES. EACH SHAREHOLDER MUST MAKE HIS OR HER OWN DECISION AS TO WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER. DIRECTORS AND EXECUTIVE
OFFICERS OF THE COMPANY AND THEIR AFFILIATES OWN AN AGGREGATE OF 14,300 SHARES,
AND THE COMPANY HAS BEEN ADVISED THAT ALL OF THESE PERSONS HAVE INDICATED THEIR
INTENTION TO TENDER THEIR SHARES PURSUANT TO THE OFFER.
2. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
IN GENERAL. The following summary is a general discussion of certain
United States federal income tax consequences relating to the Offer. This
summary does not discuss any aspects of state, local, foreign or other tax laws.
The summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), and existing final, temporary and proposed Treasury Regulations,
Revenue Rulings and judicial decisions, all of which are subject to prospective
or retroactive change. The summary deals only with Shares held as capital assets
within the meaning of Section 1221 of the Code and does not address tax
consequences that may be relevant to investors in special tax situations, such
as certain financial institutions, tax exempt organizations, insurance
companies, dealers in securities or currencies, or shareholders holding the
Shares as part of a straddle, hedge or conversion transaction for tax purposes.
The Company will not seek a ruling from the Internal Revenue Service (the "IRS")
with regard to the tax matters discussed below. Accordingly, each shareholder
should consult its own tax advisor with regard to the Offer and the application
of United States federal income tax laws, as well as the laws of any state,
local or foreign taxing jurisdiction, to its particular situation.
CHARACTERIZATION OF THE SALE. A sale of Shares by a shareholder to
the Company pursuant to the Offer will be a taxable transaction in 1997 for
United States federal income tax purposes and may also be a taxable transaction
under applicable state, local and foreign tax laws. The United States federal
income tax consequences to a shareholder may vary depending upon the
shareholder's particular facts and circumstances. Under Section 302 of the Code,
a sale of Shares by a shareholder to the Company pursuant to the Offer will be
treated as a "sale or exchange" of such Shares for United States federal income
tax purposes (rather than as a distribution by the Company with respect to the
Shares held by the tendering shareholder) if the receipt of cash upon such sale
(i) results in a "complete termination" of the shareholder's interest in the
Company or (ii) is "not essentially equivalent to a dividend" with respect to
the shareholder. These tests (the "Section 302 tests"') are explained more fully
below.
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If either of the Section 302 tests is satisfied, and the sale of the
Shares is therefore treated as a "sale or exchange" of such Shares for United
States federal income tax purposes, the tendering shareholder will recognize
capital gain or loss equal to the difference between the amount of cash received
by the shareholder pursuant to the Offer and the shareholder's tax basis in the
Shares sold pursuant to the Offer. Any such gain or loss will be long-term
capital gain or loss if the Shares have been held for more than one year.
If neither of the Section 302 tests is satisfied and the Company has
sufficient current and accumulated earnings and profits, the tendering
shareholder will be treated as having received a dividend includible in gross
income in an amount equal to the entire amount of cash received by the
shareholder pursuant to the Offer (without reduction for the tax basis of the
Shares sold pursuant to the Offer), no loss will be recognized, and (subject to
reduction as described below for corporate shareholders eligible for the
dividends-received deduction) the tendering shareholder's basis in the Shares
sold pursuant to the Offer will be added to such shareholder's basis in its
remaining stock in the Company, if any. No assurance can be given that either of
the Section 302 tests will be satisfied as to any particular shareholder, and
thus no assurance can be given that any particular shareholder will not be
treated as having received a dividend taxable as ordinary income. If the sale of
Shares is not treated as a sale or exchange for federal income tax purposes, any
cash received for Shares pursuant to the Offer in excess of the Company's
allocable earnings and profits will be treated, first, as a nontaxable return of
capital to the extent of the shareholder's basis for such shareholder's Shares,
and, thereafter, as capital gain, to the extent it exceeds such basis.
CONSTRUCTIVE OWNERSHIP OF STOCK. In determining whether either of
the Section 302 tests is satisfied, a shareholder must take into account not
only the stock of the Company that is actually owned by the shareholder, but
also stock of the Company that is constructively owned by the shareholder within
the meaning of Section 318 of the Code. Under Section 318 of the Code, a
shareholder may constructively own stock of the Company actually owned, and in
some cases constructively owned, by certain related individuals or entities in
which the shareholder has an interest, or, in the case of shareholders that are
entities, by certain individuals or entities that have an interest in the
shareholder, and stock of the Company that the shareholder has the right to
acquire by exercise of an option or by conversion. Dispositions or acquisitions
of stock of the Company by a shareholder or related individuals or entities that
are part of the same overall plan may be integrated with the sale of Shares
pursuant to the Offer in determining whether either of the Section 302 tests has
been satisfied.
SECTION 302 TESTS. One of the following tests must be satisfied in
order for the sale of Shares pursuant to the Offer to be treated as a sale or
exchange for federal income tax purposes.
a. COMPLETE TERMINATION TEST. The receipt of cash by a
shareholder will be a "complete termination" of the shareholder's
interest if either (i) the shareholder does not own, actually or
constructively, any stock of the Company other than the Shares sold
pursuant to the Offer, or (ii) the shareholder does not actually own
any stock of the Company other than the Shares sold pursuant to the
Offer and, with respect to stock of the Company constructively owned
by the shareholder that is not sold pursuant to the Offer, the
shareholder is eligible to waive (and effectively waives)
constructive ownership of all such stock under procedures described
in Section 302(c) of the Code. Shareholders considering making such
a waiver should do so in consultation with their tax advisors.
b. NOT ESSENTIALLY EQUIVALENT TO A DIVIDEND TEST. Even
if the receipt of cash by a shareholder fails to satisfy the
"complete termination" test, a shareholder may nevertheless satisfy
the "not essentially equivalent to a dividend" test if the
shareholder's sale of Shares pursuant to the Offer results in a
"meaningful reduction" in the shareholder's proportionate interest
in the Company. The sale of Shares to the Company by a tendering
shareholder should generally qualify as "not essentially equivalent
to a dividend," absent other integrated purchase transactions.
Shareholders expecting to rely on the "not essentially equivalent to
a dividend" test should consult their own tax advisors as to the
application of that test in their particular situation.
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CORPORATE SHAREHOLDER DIVIDEND TREATMENT. If a sale of Shares by a
corporate shareholder is treated as a dividend, the corporate shareholder may be
entitled to claim a deduction equal to 70% of the dividend, subject to
applicable limitations. Corporate shareholders should consider the effect of
Section 246(c) of the Code, which disallows the dividends-received deduction
with respect to stock that is held for 45 days or less (90 days or less in the
case of preferred stock, if the shareholder receives dividends attributable to a
period aggregating in excess of 366 days). For this purpose, the length of time
a taxpayer is deemed to have held stock may be reduced by periods during
which the taxpayer's risk of loss with respect to the stock is diminished by
reason of the existence of certain options or other transactions. Moreover,
under Section 246A of the Code, if a corporate shareholder has incurred
indebtedness directly attributable to an investment in Shares, the
dividends-received deduction may be reduced by a percentage generally computed
based on the amount of such indebtedness and the shareholder's tax basis in the
Shares.
In addition, because it is expected that the redemption of Shares
will not be pro rata with respect to all shareholders, any amount received by a
corporate shareholder pursuant to the Offer that is treated as a dividend will
likely constitute an "extraordinary dividend" under Section 1059 of the Code
(except as may otherwise be provided in regulations yet to be promulgated by the
Treasury Department). A corporate shareholder receiving an "extraordinary
dividend"' would be required under Section 1059(a) of the Code to reduce its
basis (but not below zero) in its Shares by the non-taxed portion of the
extraordinary dividend (i.e., the portion of the dividend for which a deduction
is allowed), and, if such portion exceeds the shareholder's tax basis for its
Shares, to treat the excess as gain from the sale of such Shares in the year in
which a sale or disposition of such Shares occurs. The basis reduction rules of
Section 1059 also generally apply to dividends that exceed a threshold
percentage of a shareholder's basis in its stock, unless the shareholder has
held its stock for more than two years before the announcement date of such
dividend. For purposes of applying Section 1059, all dividends received by a
shareholder and having their ex- dividend dates within an 85-day period
(expanded to a 365-day period in the case of dividends received in such period
that in the aggregate exceed 20% of the shareholder's basis in its stock) are
aggregated. Corporate shareholders should consult their own tax advisors as to
the application of Section 1059 of the Code to the Offer, and to any dividends
that may be paid with respect to the Shares, as well as the effect of pending
legislation discussed below.
FOREIGN SHAREHOLDERS. The Company will withhold United States
federal income tax at a rate of 30% from the gross proceeds paid pursuant to the
Offer to a foreign shareholder or his agent, unless the Company determines that
a reduced rate of withholding is applicable pursuant to a tax treaty or that an
exemption from withholding is applicable because such gross proceeds are
effectively connected with the conduct of a trade or business by the foreign
shareholder within the United States. For this purpose, a foreign shareholder is
any shareholder that is not (i) a citizen or resident or the United States, (ii)
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or (iii) any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
Generally, the determination of whether a reduced rate of
withholding is applicable is made by reference to a foreign shareholder's
address or to a properly completed Form 1001 furnished by the shareholder, and
the determination of whether an exemption from withholding is available on the
grounds that gross proceeds paid to a foreign shareholder are effectively
connected with a United States trade or business is made on the basis of a
properly completed Form 4224 furnished by the shareholder. The Company will
determine a foreign shareholder's eligibility for a reduced rate of, or
exemption from, withholding by reference to the shareholder's address and any
Forms 1001 or 4224 submitted to the Company by a foreign shareholder unless
facts and circumstances indicate that such reliance is not warranted or unless
applicable law requires some other method for determining whether a reduced rate
of withholding is applicable. These forms can be obtained from the Company.
A foreign shareholder with respect to whom tax has been withheld may
be eligible to obtain a refund of all or a portion of the withheld tax if the
shareholder satisfied one of the Section 302 tests for capital gain treatment or
is otherwise able to establish that no tax or a reduced amount of tax was due.
Foreign shareholders
5
<PAGE>
are urged to consult their own tax advisors regarding the application of United
States federal income tax withholding, including eligibility for a withholding
tax reduction or exemption and the refund procedure.
BACKUP WITHHOLDING. See Section 6 with respect to the application
of United States federal income tax backup withholding.
PENDING LEGISLATION. Proposed legislation passed by both the House
and the Senate would amend Section 1059 of the Code to require corporate
shareholders to recognize gain immediately whenever the non-taxed portion of an
extraordinary dividend exceeds the basis of stock with respect to which the
dividend is received. Such legislation would also cause any amount characterized
as a dividend due to the Section 318 option attribution rules to be treated as
an extraordinary dividend under Section 1059 (with the legislation's gain
recognition rule applied by taking into account only the basis of the stock
redeemed). In addition, for dividends received or accrued more than 30 days
after the date of enactment, the proposed legislation would require the 46-day
(or 91-day) holding period under Section 246(c) of the Code to be satisfied over
a period immediately before and/or after the ex-dividend date. It is uncertain
whether the proposed legislation will be enacted and, if enacted, what form such
legislation will take.
The impact of pending and future tax legislation on the United
States federal tax system, including possible effects on taxation of the Offer,
is uncertain. Shareholders are advised to consult their own tax advisors as to
these matters.
THE TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY. THE TAX CONSEQUENCES OF A SALE PURSUANT TO THE OFFER MAY VARY
DEPENDING UPON, AMONG OTHER THINGS, THE PARTICULAR CIRCUMSTANCES OF THE
TENDERING SHAREHOLDER. NO INFORMATION IS PROVIDED HEREIN AS TO THE STATE, LOCAL
OR FOREIGN TAX CONSEQUENCES OF THE TRANSACTION CONTEMPLATED BY THE OFFER.
SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE
PARTICULAR FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF SALES MADE BY
THEM PURSUANT TO THE OFFER, THE EFFECT OF THE STOCK OWNERSHIP ATTRIBUTION RULES
MENTIONED ABOVE AND THE EFFECT OF TAX LEGISLATIVE PROPOSALS.
3. FAIRNESS OF THE OFFER; REPORTS AND OPINIONS.
The Company believes the Offer is fair to holders of Shares. The
Offer gives holders of Shares the opportunity to sell substantial amounts of
Shares without driving down the bid price. The Offer will also provide
shareholders with the opportunity to dispose of Shares without the usual
transaction costs associated with a market sale. The Company also considered the
fact that the Shares are redeemable after September 30, 1998 for $10.00 per
Share, and depending on then current market conditions, the Company presently
anticipates that it would elect to redeem any Shares outstanding at such time.
The Company is aware that on three occasions in the past two quarters, and on
thirteen occasions in the past three years, the Shares have traded over the
Offer price of $10.25 per Share. See Section 10. The Company is unaware of any
reason for these occasional increases in the trading price of the Shares and
does not believe these isolated occurrences impair the fairness of the Offer.
The Company did not find it practicable to, and did not, quantify or otherwise
assign relative weights to the aforementioned reasons it believes the Offer is
fair to holders of Shares.
Neither the Company nor its Board of Directors received any report,
opinion (other than any opinion of counsel it may have received) or appraisal
which is materially related to the Offer, including, but not limited to, any
such report, opinion or appraisal relating to the consideration or the fairness
of the consideration to he offered to the holders of the Shares or the fairness
of such transaction to the Company. A majority of the directors who are not
employees of the Company have not retained an unaffiliated representative to act
solely on behalf of unaffiliated shareholders for the purposes of negotiating
the terms of the transaction.
6
<PAGE>
4. CERTAIN LEGAL MATTERS; REGULATORY AND FOREIGN APPROVALS; NO APPRAISAL
RIGHTS.
The Company is not aware of any license or regulatory permit that
appears to be material to its business that might be adversely affected by its
acquisition of Shares as contemplated in the Offer or of any approval or other
action by any government or governmental, administrative or regulatory authority
or agency, domestic or foreign, that would be required for the Company's
acquisition or ownership of Shares pursuant to the Offer. Should any such
approval or other action be required, the Company currently contemplates that it
will seek such approval or other action. The Company cannot predict whether it
may determine that it is required to delay the acceptance for payment of, or
payment for, Shares tendered pursuant to the Offer pending the outcome of any
such matter. There can be no assurance that any such approval or other action,
if needed, would be obtained or would be obtained without substantial conditions
or that the failure to obtain any such approval or other action might not result
in adverse consequences to the Company's business. The Company intends to make
all required filings under the Exchange Act. The Company's obligation under the
Offer to accept for payment, or make payment for, Shares is subject to certain
conditions. See Section 9.
There is no shareholder vote required in connection with the Offer.
There are no appraisal rights available to holders of Shares in
connection with the Offer.
THE OFFER
5. NUMBER OF SHARES; EXPIRATION DATE; EXTENSION OF THE OFFER.
Upon the terms and subject to the conditions described herein and in
the Letter of Transmittal, the Company will purchase any and all Shares that are
validly tendered on or prior to the Expiration Date (and not properly withdrawn
in accordance with Section 7) at the Purchase Price. The later of 5:00 p.m., New
York City time, on Friday, August 15, 1997, or the latest time and date to which
the Offer is extended, is referred to herein as the "Expiration Date." The Offer
is not conditioned on any minimum number of Shares being tendered.
Shares tendered and purchased by the Company will not be entitled to
the regular quarterly cash dividend in respect of any dividend period after June
30, 1997.
If (i) the Company increases or decreases the price to be paid for
Shares or decreases the number of Shares being sought and (ii) the Offer is
scheduled to expire at any time earlier than the expiration of a period ending
on the tenth business day from, and including, the date that notice of such
increase or decrease is first published, sent or given in the manner described
in Section 14, the Offer will be extended until the expiration of ten business
days from the date of publication of such notice.
The Company also expressly reserves the right, in its sole
discretion, at any time or from time to time, to extend the period of time
during which the Offer is open by giving oral or written notice of such
extension to the Depositary and making a public announcement thereof. See
Section 14. There can be no assurance, however, that the Company will exercise
its right to extend the Offer.
For purposes of the Offer, a "business day" means any day other than
a Saturday, Sunday or federal holiday and consists of the time period from 12:01
a.m. through 12:00 midnight, New York City time.
Copies of this Offer to Purchase and the Letter of Transmittal are
being mailed to record holders of Shares and will be furnished to brokers, banks
and similar persons whose names, or the names of whose nominees, appear on the
Company's shareholder list or, if applicable, who are listed as participants in
a clearing agency's security position listing for subsequent transmittal to
beneficial owners of Shares.
7
<PAGE>
6. PROCEDURE FOR TENDERING SHARES.
PROPER TENDER OF SHARES. To tender Shares validly pursuant to the
Offer, either (a) a properly completed and duty executed Letter of Transmittal
or photocopy thereof, together with any required signature guarantees and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at the address set forth on the back cover of this Offer to Purchase
and either (i) certificates for the Shares to be tendered must be received by
the Depositary at such address or (ii) such Shares must be delivered pursuant to
the procedures for book-entry transfer described below (and a confirmation of
such delivery received by the Depositary), in each case on or prior to the
Expiration Date, or (b) the tendering holder of Shares must comply with the
guaranteed delivery procedure described below.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with
respect to the Shares at The Depository Trust Company ("DTC") for purposes of
the Offer within two business days after the date of this Offer to Purchase, and
any financial institution that is a participant in the book-entry transfer
system of DTC may make delivery of Shares by causing DTC to transfer such Shares
into the Depositary's account in accordance with the procedures of DTC. Although
delivery of Shares may be effected through book-entry transfer, a properly
completed and duly executed Letter of Transmittal or photocopy thereof, together
with any required signature guarantees and any other required documents, must,
in any case, be received by the Depositary at one of its addresses set forth on
the back cover of this Offer to Purchase on or prior to the Expiration Date, or
the tendering holder of Shares must comply with the guaranteed delivery
procedure described below. DELIVERY OF THE LETTER OF TRANSMITTAL AND ANY OTHER
REQUIRED DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
SIGNATURE GUARANTEES. Except as otherwise provided below, all
signatures on a Letter of Transmittal must be guaranteed by a firm that is a
member of a registered national securities exchange or the National Association
of Securities Dealers, Inc., or by a commercial bank or trust company having an
office or correspondent in the United States which is a participant in an
approved Signature Guarantee Medallion Program (each of the foregoing being
referred to as an "Eligible Institution"). Signatures on a Letter of Transmittal
need not be guaranteed if (a) the Letter of Transmittal is signed by the
registered holder of the Shares tendered therewith and such holder has not
completed the box entitled "Special Placement Instructions" or the box entitled
"Special Delivery Instructions" in the Letter of Transmittal or (b) such Shares
are tendered for the account of an Eligible Institution. See Instructions I and
5 of the Letter of Transmittal.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares
pursuant to the Offer and cannot deliver certificates for such Shares and all
other required documents to the Depositary on or prior to the Expiration Date or
the procedure for book-entry transfer cannot be complied with in a timely
manner, such Shares may nevertheless be tendered if all of the following
conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of
Guaranteed Delivery substantially in the form provided
by the Company (with any required signature guarantees)
is received by the Depositary as provided below on or
prior to the Expiration Date; and
(iii) the certificates for such Shares (or a confirmation of a
book-entry transfer of such Shares into the Depositary's
account at DTC, together with a properly completed and
duly executed Letter of Transmittal (or photocopy
thereof) and any other documents required by the Letter
of Transmittal, are received by the Depositary no later
than 5:00 p.m., New York City time, on the third
business day after the date of execution of the Notice
of Guaranteed Delivery.
8
<PAGE>
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile transmission or mail to the Depositary and must include
a guarantee by an Eligible Institution in the form set forth in such Notice.
THE METHOD OF DELIVERY OF SHARES AND ALL OTHER REQUIRED DOCUMENTS
IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY.
FEDERAL BACKUP WITHHOLDING. TO AVOID FEDERAL INCOME TAX BACKUP
WITHHOLDING EQUAL TO 31% OF THE GROSS PAYMENTS MADE PURSUANT TO THE OFFER, EACH
SHAREHOLDER MUST NOTIFY THE DEPOSITARY OF SUCH SHAREHOLDER'S CORRECT TAXPAYER
IDENTIFICATION NUMBER AND PROVIDE CERTAIN OTHER INFORMATION BY PROPERLY
COMPLETING THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL.
FOREIGN SHAREHOLDERS (AS DEFINED IN SECTION 2) MAY BE REQUIRED TO SUBMIT A
PROPERLY COMPLETED FORM W-8, CERTIFYING NON-UNITED STATES STATUS, IN ORDER TO
AVOID BACKUP WITHHOLDING. IN ADDITION, FOREIGN SHAREHOLDERS MAY BE SUBJECT TO
30% (OR LOWER TREATY RATE) WITHHOLDING ON GROSS PAYMENTS RECEIVED PURSUANT TO
THE OFFER (AS DISCUSSED IN SECTION 2). FOR A DISCUSSION OF CERTAIN FEDERAL
INCOME TAX CONSEQUENCES TO TENDERING SHAREHOLDERS, SEE SECTION 2. EACH
SHAREHOLDER IS URGED TO CONSULT WITH HIS OR HER OWN TAX ADVISOR.
DETERMINATIONS OF VALIDITY. All questions as to the Purchase Price,
the form of documents and the validity, eligibility (including time of receipt)
and acceptance for payment of any tender of Shares will be determined by the
Company, in its sole discretion, and its determination shall be final and
binding. The Company reserves the absolute right to reject any or all tenders of
Shares that it determines are not in proper form or the acceptance for payment
of or payment for Shares that may, in the opinion of the Company's counsel, be
unlawful. The Company also reserves the absolute right to waive any defect or
irregularity in any tender of Shares. None of the Company, the Depositary, the
Information Agent or any other person will be under any duty to give notice of
any defect or irregularity in tenders, nor shall any of them incur any liability
for failure to give any such notice.
RULE 14E-4. It is a violation of Rule 14e-4 promulgated under the
Exchange Act for a person to tender Shares for his or her own account unless the
person so tendering (i) has a net long position equal to or greater than the
amount of (x) Shares tendered or (y) other securities immediately convertible
into, exercisable, or exchangeable for the amount of Shares tendered and will
acquire such Shares for tender by conversion, exercise or exchange of such other
securities and (ii) will cause such Shares to be delivered in accordance with
the terms of the Offer. Rule 14e-4 provides a similar restriction applicable to
the tender or guarantee of a tender on behalf of another person. The tender of
Shares pursuant to any one of the procedures described above will constitute the
tendering shareholder's representation and warranty that (i) such shareholder
has a net long position in the Shares being tendered within the meaning of Rule
14e-4 promulgated under the Exchange Act, and (ii) the tender of such Shares
complies with Rule 14e-4. The Company's acceptance for payment of Shares
tendered pursuant to the Offer will constitute a binding agreement between the
tendering shareholder and the Company upon the terms and subject to the
conditions of the Offer.
7. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date. Thereafter, such tenders are irrevocable,
except that they may be withdrawn after September 10, 1997, unless theretofore
accepted for payment as provided in this Offer to Purchase. If the Company
extends the period of time during which the Offer is open, is delayed in
accepting for payment or paying for Shares or is unable to accept
9
<PAGE>
for payment or pay for Shares pursuant to the Offer for any reason, then,
without prejudice to the Company's rights under the Offer, the Depositary may,
on behalf of the Company, retain all Shares tendered, and such Shares may not be
withdrawn except as otherwise provided in this Section 7, subject to Rule
13e-4(f)(5) under the Exchange Act, which provides that the issuer making the
tender offer shall either pay the consideration offered, or return the tendered
securities promptly after the termination or withdrawal of the tender offer.
To be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Depositary at its address set forth on
the back cover of this Offer to Purchase and must specify the name of the person
who tendered the Shares to be withdrawn and the number of Shares to be
withdrawn. If the Shares to be withdrawn have been delivered to the Depositary,
a signed notice of withdrawal with signatures guaranteed by an Eligible
Institution (except in the case of Shares tendered by an Eligible Institution)
must be submitted prior to the release of such Shares. In addition, such notice
must specify, in the case of Shares tendered by delivery of certificates, the
name of the registered holder (if different from that of the tendering
shareholder) and the serial numbers shown on the particular certificates
evidencing the Shares to be withdrawn or, in the case of Shares tendered by
book-entry transfer, the name and number of the account at DTC to be credited
with the withdrawn Shares. Withdrawals may not be rescinded, and Shares
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 6 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of
receipt) of any notice of withdrawal will be determined by the Company, in its
sole discretion, which determination shall be final and binding. None of the
Company, the Depositary, the Information Agent or any other person will be under
any duty to give notification of any defect or irregularity in any notice of
withdrawal or incur any liability for failure to give any such notification.
8. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE.
Upon the terms and subject to the conditions of the Offer and as
promptly as practicable after the Expiration Date, the Company will accept for
payment and pay the Purchase Price for any and all Shares validly tendered.
Thereafter, payment for all Shares accepted for payment pursuant to the Offer
will be made by the Depositary by check as promptly as practicable. In all
cases, payment for Shares accepted for payment pursuant to the Offer will be
made only after timely receipt by the Depositary of certificates for Shares (or
of a confirmation of a book-entry transfer of such Shares into the Depositary's
account at DTC, a properly completed and duly executed Letter of Transmittal or
photocopy thereof, and any other required documents.
For purposes of the Offer, the Company will be deemed to have
accepted for payment (and thereby purchased) Shares that are validly tendered
prior to the applicable Expiration Date and not withdrawn as, if and when it
gives oral or written notice to the Depositary of its acceptance for payment of
such Shares. The Company will pay for Shares that it has purchased pursuant to
the Offer by depositing the Purchase Price therefor with the Depositary. The
Depositary will act as agent for tendering shareholders for the purpose of
receiving payment from the Company and transmitting payment to tendering
shareholders. Under no circumstances will interest be paid on amounts to be paid
to tendering shareholders, regardless of any delay in making such payment.
If certain events occur, the Company may not be obligated to
purchase Shares pursuant to the Offer. See Section 9. Certificates for all
Shares not purchased will be returned (or, in the case of Shares tendered by
book-entry transfer, such Shares will be credited to an account maintained with
DTC) as promptly as practicable without expense to the tendering shareholder.
The Company will pay or cause to be paid any stock transfer taxes
with respect to the sale and transfer of any Shares to it or its order pursuant
to the Offer. If, however, payment of the Purchase Price is to be made to, or
Shares not tendered or not purchased are to be registered in the name of, any
person other than the registered holder, or if tendered Shares are registered in
the name of any person other than the person signing the Letter of
10
<PAGE>
Transmittal, the amount of any stock transfer taxes (whether imposed on the
registered holder, such other person or otherwise) payable on account of the
transfer to such person will be deducted from the Purchase Price unless
satisfactory evidence of the payment of such taxes, or exemption therefrom, is
submitted. See Instruction 6 of the Letter of Transmittal.
9. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provisions of the Offer, the Company will
not be required to accept for payment or pay for any Shares tendered, and may
terminate or amend the Offer or may postpone (subject to the requirements
of the Exchange Act for prompt payment for or return of Shares) the acceptance
for payment of or payment for Shares tendered, if at any time on or after July
16, 1997, and before acceptance for payment of or payment for any such Shares,
any of the following events shall have occurred (or shall have been determined
by the Company in its reasonable good faith judgment to have occurred)
regardless of the circumstances giving rise thereto (including any action or
omission to act by the Company):
(a) there shall have been threatened, instituted or
pending any action or proceeding by any government or governmental,
regulatory or administrative agency or authority or tribunal or any
other person, domestic or foreign, or before any court, authority,
agency or tribunal that (i) challenges or seeks to challenge the
acquisition of Shares pursuant to the Offer or otherwise in any
manner relates to or affects the Offer or (ii) in the sole judgment
of the Company, could materially and adversely affect the business,
condition (financial or other), income, operations or prospects of
the Company and its subsidiaries, taken as a whole, or otherwise
materially impair in any way the contemplated future conduct of the
business of the Company or any of its subsidiaries or materially
impair the contemplated benefits of the Offer to the Company;
(b) there shall have been any action threatened, pending
or taken, or approval withheld, withdrawn or abrogated or any
statute, rule, regulation, judgment, order or injunction threatened,
proposed, sought, promulgated, enacted, entered, amended, enforced
or deemed to be applicable to the Offer or the Company or any of its
subsidiaries by any legislative body, court, authority, agency or
tribunal which, in the Company's sole judgment, would or might
directly or indirectly (i) make the acceptance for payment of, or
payment for, some or all of the Shares illegal or otherwise restrict
or prohibit consummation of the Offer, (ii) delay or restrict the
ability of the Company, or render the Company unable, to accept for
payment or pay for some or all of the Shares, (iii) impose or seek
to impose limitations on the ability of the Company to acquire or
hold or to exercise full rights of ownership of the Shares, (iv)
materially impair the contemplated benefits of the Offer to the
Company or (v) materially affect the business, condition (financial
or other), income, operations or prospects of the Company and its
subsidiaries, taken as a whole, or otherwise materially impair in
any way the contemplated future conduct of the business of the
Company or any of its subsidiaries;
(c) it shall have been publicly disclosed or the Company
shall have learned that (i) any person or "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) has acquired or
proposes to acquire beneficial ownership of more than 5% of the
outstanding shares of the common stock of the Company, whether
through the acquisition of stock, the formation of a group, the
grant of any option or right, or otherwise (other than as disclosed
in a Schedule 13D or 13G (or an amendment thereto) on file with the
Commission on July 15, 1997), (ii) any such person or group that on
or prior to July 15, 1997, had filed such a Schedule with the
Commission thereafter shall have acquired or shall propose to
acquire whether through the acquisition of stock, the formation of a
group, the grant of any option or right, or otherwise, beneficial
ownership of additional shares of the common stock of the Company
representing 2% or more of the outstanding shares of such common
stock, (iii) any new group shall have been formed which beneficially
owns more than 5% of the outstanding shares of the common stock of
the Company, or (iv) any person, entity or group shall have filed a
Notification and Report Form under the Hart-Scott-
11
<PAGE>
Rodino Antitrust Improvements Act of 1976 or made a public
announcement reflecting an intent to acquire the Company or any or
its subsidiaries or any of their respective assets or securities;
(d) there shall have occurred (i) any general suspension
of trading in, or limitation on prices for, securities on any
national securities exchange or in the over-the-counter market, (ii)
any significant decline in the market price of the Shares or in the
general level of market prices of equity securities in the United
States or abroad, (iii) any change in the general political, market,
economic or financial condition in the United States or abroad that
could have a material adverse effect on the Company's business,
condition (financial or other), income, operations, prospects or
ability to obtain financing generally or the trading in the Shares,
(iv) the declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or any limitation
on, or any event which, in the Company's sole judgment, might
affect, the extension of credit by lending institutions in the
United States, (v) the commencement of a war, armed hostilities or
other international or national crisis directly or indirectly
involving the United States or (vi) in the case of any of the
foregoing existing at the time of the commencement of the Offer, in
the Company's reasonable good faith judgment, a material
acceleration or worsening thereof;
(e) a tender or exchange offer with respect to some or
all of the Shares (other than the Offer) or other shares of
preferred stock of the Company or some or all of the common stock of
the Company, or a merger, acquisition or other business combination
proposal for the Company or any subsidiary, shall have been
proposed, announced or made by a person other than the Company;
(f) there shall have occurred any event or events that
have resulted, or may in the sole judgment of the Company result, in
an actual or threatened change in the business, condition (financial
or other), income, operations, stock ownership or prospects of the
Company and its subsidiaries, taken as a whole or materially impair
the contemplated benefits of the Offer;
(g) (i) Moody's Investors Service, Inc. ("Moody's") or
Thomson BankWatch, Inc. ("Bankwatch") shall have downgraded or
withdrawn the rating accorded any securities of the Company, or (ii)
Moody's or Bankwatch shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any securities of the Company; or
(h) there shall have occurred any decline in the S&P
Composite 500 Stock Index by an amount in excess of 15% measured
from the close of business on July 15, 1997 and, in the reasonable
good faith judgment of the Company, such event or events make it
undesirable or inadvisable to proceed with the Offer or with such
acceptance for payment or payment.
Any of the foregoing conditions may be waived by the Company, in whole or in
part, at any time and from time to time in its sole discretion. In conjunction
with the exercise of such discretion the Company shall be governed by the
standards of good faith and commercial reasonableness. The Exchange Act requires
that all conditions to the Offer must be satisfied or waived before the
Expiration Date. The failure by the Company at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right which may be asserted at any time and
from time to time. Any determination by the Company concerning the events
described above, and any related reasonable good faith judgment by the Company
regarding the inadvisability of proceeding with the acceptance for payment or
payment for any tendered Shares, will be final and binding on all parties.
12
<PAGE>
10. PRICE RANGE OF SHARES; DIVIDENDS; TRADING VOLUME.
The Shares trade on the NASDAQ NMS under the symbol "BKUNO." The
following table sets forth the high and low bid prices of the Shares as reported
on the NASDAQ NMS and the cash dividends per Share for the quarters indicated.
<TABLE>
<CAPTION>
Bid Price Bid Price Cash Dividends
Fiscal Year High Low Per Share
<S> <C> <C> <C>
1995 1st Quarter...................................... $9 $7 1/4 $ .225
2nd Quarter...................................... $9 $7 1/4 $ .225
3rd Quarter...................................... $9 3/4 $8 $ .225
4th Quarter...................................... $10 3/4 $8 3/4 $ .225
1996 1st Quarter...................................... $10 1/2 $9 1/4 $ .225
2nd Quarter...................................... $10 1/4 $9 $ .225
3rd Quarter...................................... $10 1/8 $8 7/8 $ .225
4th Quarter...................................... $10 1/8 $8 1/2 $ .225
1997 1st Quarter...................................... $10 1/4 $9 5/8 $ .225
2nd Quarter...................................... $10 3/4 $9 5/8 $ .225
3rd Quarter...................................... $10 3/8 $9 1/2 $ .225
4th Quarter (through July 14, 1997).............. $10 1/4 $10
Source: Bloomberg LP
</TABLE>
As of the close of business on July 14, 1997, the bid price
of the Shares as reported on the NASDAQ NMS was $10.25 per Share. SHAREHOLDERS
ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
Shares tendered and purchased by the Company will not be
entitled to the regular quarterly cash dividend in respect of any dividend
period after June 30, 1997.
Florida law imposes certain legal restrictions on the
Company's ability to pay dividends. As a general matter, Florida law provides
that a distribution may not be made if after giving effect thereto (1) the
corporation would be unable to pay its debts as they become due in the usual
course of its business, or (2) the total assets of the corporation would be less
than the sum of its total liabilities plus the amount that would be needed, if
the corporation were to be dissolved at the time as of which the dividend is
measured, to satisfy the preferential rights upon dissolution of shareholders
whose preferential rights are superior to those receiving the distribution.
11. CERTAIN INFORMATION CONCERNING THE COMPANY.
The Company is a Florida corporation organized in December
1992 for the purpose of becoming the savings and loan holding company for
BankUnited, FSB (the "Bank"). This holding company reorganization, together with
the Bank's conversion from a Florida-chartered stock savings bank (which
commenced operations in October 1984) to a federally chartered stock savings
bank, became effective on March 5, 1993. At March 31, 1997, the Company had $1.0
billion in deposits and $98.9 million in stockholders' equity. With over $1.4
billion in assets, the Company is the fourth largest publicly held depository
institution headquartered in South Florida.
The Company currently has fourteen branch offices in Dade,
Broward and Palm Beach Counties, Florida, and anticipates opening six or more
additional branches by June 30, 1998. The Company's business has traditionally
consisted of attracting deposits from the general public and using those
deposits, together with borrowings and other funds, to purchase nationwide and
to originate in its market area single-family residential
13
<PAGE>
mortgage loans, and to a lesser extent, to purchase and originate commercial
real estate, commercial business and consumer loans. The Company's revenues are
derived principally from interest earned on loans, mortgage-backed securities
and investments. The Company's primary expenses arise from interest paid on
savings deposits and borrowings and non-interest expenses incurred in
operations.
The Bank is a member of the Federal Home Loan Bank system and
is subject to comprehensive regulation, examination and supervision by the
Office of Thrift Supervision (the "OTS") and the Federal Deposit Insurance
Corporation (the "FDIC"). Deposits at the Bank are insured by the Savings
Association Insurance Fund of the FDIC to the maximum extent permitted by law.
The Company's executive offices are located at 255 Alhambra
Circle, Coral Gables, Florida 33134, and its telephone number is (305) 569-2000.
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
Schedule A hereto sets forth the name, business address and
present principal occupation or employment and any other material occupations,
positions, offices or employments during the last five years of each director
and executive officer of the Company. Schedule A also sets forth the citizenship
of each such director and executive officer.
14
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION
The information for, and as of the end of, the six months ended March 31,
1997 and 1996 is unaudited, but in the opinion of management reflects all
adjustments (consisting only of normal recurring accruals) necessary for a fair
presentation of the results for such periods. The results for the six months
ended March 31, 1997 are not necessarily indicative of the results that may be
expected for the entire year. The selected historical financial information
should be read in conjunction with and is qualified in its entirety by reference
to (i) the Company's Consolidated Financial Statements and Notes thereto
contained in the Company's Annual Report on Form 10-K/A for the fiscal year
ended September 30, 1996 (the "1996 10-K/A") and in the Company' Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1997 (the "March
31, 1997 10-Q"); and (ii) the Consolidated Financial Statements and Notes
thereto, contained in the Suncoast Savings and Loan Association, FSA
("Suncoast") Annual Report on Form 10-K for the fiscal year ended June 30, 1996
and the Suncoast Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1996, since the Company acquired Suncoast on November 15, 1996
(subsequent to the Company's last fiscal year end). These reports may be
obtained or inspected in the manner set forth in Section 16.
<TABLE>
<CAPTION>
AT OR FOR THE SIX AT OR FOR
MONTHS ENDED THE FISCAL YEAR
MARCH 31, ENDED SEPTEMBER 30,
------------------------- ---------------------------
1997(1) 1996 1996 1995
----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
OPERATIONS DATA:
Interest income ..................................................... $ 43,696 $ 23,326 $ 52,132 $ 39,419
Interest expense .................................................... 27,241 16,030 34,622 26,305
----------- ----------- ----------- -----------
Net interest income before provision (credit) for loan losses ....... 16,455 7,296 17,510 13,114
Provision (credit) for loan losses .................................. 415 (300) (120) 1,221
----------- ----------- ----------- -----------
Net interest income after provision (credit) for loan losses ........ 16,040 7,596 17,630 11,893
----------- ----------- ----------- -----------
Non-interest income:
Service fees ........................................................ 1,449 281 597 423
Gain on sales of loans and mortgage-backed securities, net .......... 2 3 5 239
(Loss) gain on sales of other assets, net(2) ........................ -- (7) (6) 9,569
Other ............................................................... 150 10 53 6
----------- ----------- ----------- -----------
Total non-interest income ......................................... 1,601 287 649 10,237
----------- ----------- ----------- -----------
Non-interest expense:
Employee compensation and benefits .................................. 4,436 2,023 4,275 3,997
Occupancy and equipment ............................................. 1,615 786 1,801 1,727
Insurance (3) ....................................................... 471 469 3,610 1,027
Professional fees ................................................... 542 477 929 1,269
Preferred Dividends of Trust Subsidiary ............................. 1,355 -- -- --
Other ............................................................... 3,515 1,537 3,421 4,129
----------- ----------- ----------- -----------
Total non-interest expense ........................................ 11,934 5,292 14,036 12,149
----------- ----------- ----------- -----------
Income before income taxes and Preferred Stock dividends ............ 5,707 2,591 4,243 9,981
Provision for income taxes .......................................... 2,265 987 1,657 3,741
----------- ----------- ----------- -----------
Net income before Preferred Stock dividends ......................... 3,442 1,604 2,586 6,240
Preferred Stock dividends ........................................... 1,449 1,072 2,145 2,210
----------- ----------- ----------- -----------
Net income after Preferred Stock dividends .......................... $ 1,993 $ 532 $ 441 $ 4,030
=========== =========== =========== ===========
FINANCIAL CONDITION DATA:
Total assets ........................................................ $ 1,453,161 $ 738,491 $ 824,360 $ 608,415
Loans receivable, net, and mortgage-backed securities(4) ............ 1,319,181 630,519 716,550 506,132
Investments, overnight deposits, tax certificates, repurchase
agreements, certificates of deposits and other interest
earning assets .................................................... 55,917 86,336 87,662 88,768
Total liabilities ................................................... 1,284,258 669,023 755,249 562,670
Deposits ............................................................ 1,011,475 423,568 506,106 310,074
Borrowings .......................................................... 252,259 239,775 237,775 241,775
Trust Preferred Securities .......................................... 70,000 -- -- --
Total stockholders' equity .......................................... 98,903 69,468 69,111 45,745
Common stockholders' equity ......................................... 64,799 45,155 44,807 21,096
PER COMMON SHARE DATA:
Primary earnings per common share and common equivalent share ....... $ .25 $ .18 $ .10 $ 1.77
=========== =========== =========== ===========
Earnings per common share assuming full dilution .................... $ .25 $ .18 $ .10 $ 1.26
=========== =========== =========== ===========
Weighted average number of common shares and common equivalent
shares assumed outstanding during the period:
Primary ........................................................... 7,952,197 3,022,388 4,558,521 2,296,021
Fully diluted ..................................................... 8,674,187 3,035,458 4,558,521 4,158,564
Equity per common share ............................................. $ 7.32 $ 7.49 $ 7.85 $ 10.20
Fully converted tangible equity per common share .................... $ 6.50 $ 7.16 $ 7.13 $ 8.15
</TABLE>
(Continued on next page)
15
<PAGE>
<TABLE>
<CAPTION>
AT OR FOR THE SIX AT OR FOR
MONTHS ENDED THE FISCAL YEAR
MARCH 31, ENDED SEPTEMBER 30,
------------------ ------------------
1997(1) 1996 1996 1995
------- ------- ------- -------
<S> <C> <C> <C> <C>
SELECTED FINANCIAL RATIOS: (Annualized where appropriate)
PERFORMANCE RATIOS:
Return on average assets(5) ....................................................... .58% .50% .36% 1.10%
Return on average common equity ................................................... 8.37 4.10 1.30 22.60
Return on average total equity .................................................... 7.74 6.34 4.30 14.70
Interest rate spread .............................................................. 2.56 1.96 2.10 2.12
Net interest margin ............................................................... 2.91 2.35 2.51 2.39
Dividend payout ratio(6) .......................................................... 42.10 66.83 82.95 35.42
Ratio of earnings to combined fixed charges and preferred stock dividends(7):
Excluding interest on deposits ................................................. 1.37 1.10 1.05 1.52
Including interest on deposits ................................................. 1.11 1.05 1.02 1.21
Total loans, net, and mortgage-backed securities to
total deposits ................................................................. 130.42 148.86 141.58 163.13
Non-interest expenses to average assets ........................................... 1.79 1.65 1.97 2.14
Efficiency ratio(8) ............................................................... 62.80 68.60 76.45 14.58
ASSET QUALITY RATIOS:
Ratio of non-performing loans to total loans ...................................... .82% .95% .99% 1.02%
Ratio of non-performing assets to total loans, real estate
owned and tax certificates ...................................................... .93 1.24 1.14 1.35
Ratio of non-performing assets to total assets .................................... .79 .99 .95 1.10
Ratio of charge-offs to total loans ............................................... .04 .04 .08 .13
Ratio of loan loss allowance to total loans ....................................... .24 .38 .34 .32
Ratio of loan loss allowance to non-performing loans .............................. 28.92 40.24 33.74 31.54
CAPITAL RATIOS:
Ratio of average common equity to average total assets ............................ 4.03% 4.06% 4.78% 3.14%
Ratio of average total equity to average total assets ............................. 7.52 7.91 8.44 7.47
Tangible capital-to-assets ratio(9) ............................................... 8.39 7.10 7.01 7.09
Core capital-to-assets ratio(9) ................................................... 8.39 7.10 7.01 7.09
Risk-based capital-to-assets ratio(9) ............................................. 13.34 14.97 14.19 15.79
</TABLE>
(1) Includes operations of Suncoast from date of acquisition on
November 15, 1996.
(2) In the fourth quarter of 1995, the Company recorded a $9.3 million
gain ($5.8 million after tax) from the sale of its branches on the
west coast of Florida.
(3) In the fourth quarter of 1996, the Company recorded a one time SAIF
special assessment of $2.6 million ($1.6 million after tax).
(4) Does not include mortgage loans held for sale.
(5) Return on average assets is calculated before payment of preferred
stock dividends.
(6) The ratio of total dividends declared during the period (including
dividends on the Bank's and the Company's preferred stock and the
Company's Class A and Class B Common Stock) to total earnings for
the period before dividends.
(7) The ratio of earnings to combined fixed charges and preferred stock
dividends excluding interest on deposits is calculated by dividing
income before taxes and extraordinary items by interest on
borrowings plus 33% of rental expense plus preferred stock dividends
on a pretax basis. The ratio of earnings to combined fixed charges
and preferred stock dividends including interest on deposits is
calculated by dividing income before taxes and extraordinary items
by interest on deposits plus interest on borrowings plus 33% of
rental expense plus preferred stock dividends on a pretax basis.
(8) Efficiency ratio is calculated by dividing non-interest expenses
less non-interest income by net interest income.
(9) Regulatory capital ratio of the Bank.
16
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of
the Company as of March 31, 1997, and as adjusted to reflect (i) the
consummation of the Offer assuming all of the outstanding Shares are tendered
and purchased; and (ii) the consummation of an offering of 9.60% Cumulative
Trust Preferred Securities of BankUnited Capital II, a subsidiary of the
Company, which occurred on June 5, 1997. The following data should be read in
conjunction with the selected historical financial information set forth above
and the detailed information and financial statements included in the 1996
10-K/A and the March 31, 1997 10-Q and is qualified in its entirety by
reference thereto.
<TABLE>
<CAPTION>
AS
ACTUAL ADJUSTED
------ --------
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
Deposits......................................................................... $1,011,475 $1,011,475
FHLB advances..................................................................... 251,484 251,484
Subordinated notes................................................................ 775 775
---------- ----------
Total deposits and borrowed funds............................................ 1,263,734 1,263,734
---------- ----------
Company Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts Holding Solely Junior Subordinated Deferrable Interest
Debentures of the Company...................................................... 70,000 116,000
---------- ----------
Stockholders' equity:
Preferred Stock, Series B, 8% Convertible and 9% Perpetual, $.01 par value;
authorized--10,000,000 shares; issued and outstanding--
2,998,688 shares(2)............................................................ 30 18
Class A Common Stock, $.01 par value; authorized--30,000,000 shares;
issued and outstanding--8,571,246 shares....................................... 85 85
Class B Common Stock, $.01 par value; authorized--3,000,000 shares,
issued and outstanding--275,938 shares......................................... 3 3
Additional paid-in capital....................................................... 90,608 78,832
Retained earnings................................................................ 9,272 9,272
Net unrealized losses on securities available for sale, net of tax............... (1,095) (1,095)
---------- ----------
Total stockholders' equity.................................................... 98,903 87,115
---------- ----------
Total deposits, borrowed funds and stockholders' equity....................... $1,432,637 $1,466,849
========== ==========
</TABLE>
(1) Such shares had an aggregate liquidation preference of $34.1
million at March 31, 1997.
12. SOURCE AND AMOUNT OF FUNDS.
Assuming that the Company purchases all outstanding Shares pursuant
to the Offer at the Purchase Price, the total amount required by the Company to
purchase such Shares will be approximately $11.79 million, exclusive of fees and
other expenses. The fees and expenses associated with the Offer are expected to
be approximately $60,000.00. The source of funds for the Company's purchase of
the Shares shall be the Company's working capital.
13. TRANSACTIONS AND AGREEMENTS CONCERNING THE SHARES.
The Company has been advised by its directors and executive officers
that directors or executive officers of the Company and their affiliates own
14,300 Shares, and that these persons intend to tender their Shares pursuant to
the Offer. Based upon the Company's records and upon information provided to the
Company by its directors and executive officers, to the Company's knowledge,
none of its associates, subsidiaries, directors, executive officers or any
associate of any such director or executive officer, or any director or
executive officer of its subsidiaries, has engaged in any transactions involving
the Shares since October 1, 1994. Neither the Company nor, to the Company's
knowledge, any of its directors or executive officers is a party to any
contract, arrangement, understanding or relationship relating, directly or
indirectly, to the Offer with any other person with respect to any securities of
the Company.
17
<PAGE>
14. EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENTS.
The Company expressly reserves the right, in its sole discretion and
at any time or from time to time, to extend the period of time during which the
Offer is open by giving oral or written notice of such extension to the
Depositary. There can be no assurance, however, that the Company will exercise
its right to extend the Offer. During any such extension, all Shares previously
tendered will remain subject to the Offer, except to the extent that such Shares
may be withdrawn as set forth in Section 7. The Company also expressly reserves
the right, in its sole discretion, (i) to terminate the Offer and not accept for
payment any Shares not theretofore accepted for payment or, subject to Rule 13e-
4(f)(5) under the Exchange Act, which requires the Company either to pay the
consideration offered or to return the Shares tendered promptly after the
termination or withdrawal of the Offer, to postpone payment for Shares upon the
occurrence of any of the conditions specified in Section 9 hereof by giving oral
or written notice of such termination to the Depositary and making a public
announcement thereof and (ii) at any time or from time to time, to amend the
Offer in any respect. Amendments to the Offer may be effected by public
announcement. Without limiting the manner in which the Company may choose to
make public announcement of any termination or amendment, the Company shall have
no obligation (except as otherwise required by applicable law) to publish,
advertise or otherwise communicate any such public announcement, other than by
making a release to the Dow Jones News Service, except in the case of an
announcement of an extension of the Offer, in which case the Company shall have
no obligation to publish, advertise or otherwise communicate such announcement
other than by issuing a notice of such extension by press release or other
public announcement, which notice shall be issued no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Material changes to information previously provided to holders
of the Shares in this Offer or in documents furnished subsequent thereto will be
disseminated to holders of Shares in compliance with Rule 13e-4(e)(2)
promulgated under the Exchange Act.
If the Company materially changes the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, the Company will extend the Offer to the extent required by Rules
13e-4(d)(2) and 13e-4(e)(2) under the Exchange Act. Those rules require that the
minimum period during which an offer must remain open following material changes
in the terms of the offer or information concerning the offer (other than a
change in price, change in dealer's soliciting fee or change in percentage of
securities sought) will depend on the facts and circumstances, including the
relative materiality of such terms or information. In a published release, the
Commission has stated that in its view, an offer should remain open for a
minimum of five business days from the date that notice of such a material
change is first published, sent or given. The Offer will continue or be extended
for at least ten business days from the time the Company publishes, sends or
gives to holders of Shares a notice that it will (a) increase or decrease the
price it will pay for Shares or the amount of the dealer's soliciting fee or (b)
decrease the number of Shares it seeks.
15. FEES AND EXPENSES.
The Company has retained American Stock Transfer and Trust Company
as Depositary and Shareholder Communications Corporation as Information Agent in
connection with the Offer. The Information Agent may contact shareholders by
mail, telephone, facsimile transmission and personal interviews, and may request
brokers, dealers and other nominee shareholders to forward materials relating to
the Offer to beneficial owners. The Depositary and the Information Agent will
receive reasonable and customary compensation of their services and will also be
reimbursed for certain out-of-pocket expenses. The Company has agreed to
indemnify the Depositary and the Information Agent against certain liabilities,
including certain liabilities under the federal securities laws, in connection
with the Offer. Neither the Information Agent nor the Depositary has been
retained to make solicitations or recommendations in connection with the Offer.
Certain directors or executive officers of the Company may, from
time to time, contact shareholders to provide them with information regarding
the Offer. Such directors and executive officers will not make any
recommendation to any shareholder as to whether to tender all or any Shares and
will not solicit the tender of any Shares. The Company will not compensate any
director or executive officer for this service.
18
<PAGE>
Other than as described above, the Company will not pay any
solicitation fees to any broker, dealer, bank, trust company or other person for
any Shares purchased in connection with the Offer. The Company will reimburse
such persons for customary handling and mailing expenses incurred in connection
with the Offer.
The Company will pay all stock transfer taxes, if any, payable on
account of the acquisition of the Shares by the Company pursuant to the Offer,
except in certain circumstances where special payment or delivery procedures are
utilized pursuant to Instruction 6 of the Letter of Transmittal.
The expenses incurred, or estimated to be incurred, by the Company
in connection with the Offer are set forth below. The Company will be
responsible for paying all such expenses.
Solicitation Fees................................................... $ 10,000
Printing and Mailing Fees............................................ 15,000
Filing Fees ......................................................... 2,300
Legal, Accounting and Miscellaneous.................................. 30,000
--------
Total.................................................... $ 57,300
========
16. MISCELLANEOUS.
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith files reports and other information
with the Commission relating to its business, financial condition and other
matters. Certain information as of particular dates concerning the Company's
directors and officers, their remuneration, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company is filed with the Commission. The Company has also filed a
Rule 13e-3 Transaction Statement on Schedule 13E-3 and an Issuer Tender Offer
Statement on Schedule 13E-4 with the Commission, which include certain
additional information relating to the Offer. Such reports, as well as such
other material, may be inspected and copies may be obtained at the Commission's
Public Reference Section at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and should also be available for inspection and copying
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, New York, New York 10048, and Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by
mail, upon payment of the Commission's customary fees, from the Commission's
Public Reference Section at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a Web site that contains
reports, proxy and information statements and other materials that are filed
through the Commission's Electronic Data Gathering, Analysis, and Retrieval
system. This Web site can be accessed at http://www.sec.gov. The Company's
Schedules 13E-3 and 13E-4 may not be available at the Commission's regional
offices. Reports, proxy statements and other information filed by Suncoast
pursuant tot he informational requirements of the Exchange Act, prior to the
acquisition of Suncoast by the Company, can be inspected and copies at the
public reference facilities maintained by the OTS at 1700 G Street, N.W.,
Washington, D.C. 20552 or at the OTS Southeast Regional Office, 1475 Peachtree
Street, N.E., Atlanta, Georgia 30309.
The Offer is being made to all holders of Shares. The Company is not
aware of any state where the making of the Offer is prohibited by administrative
or judicial action pursuant to a valid state statute. If the Company becomes
aware of any valid state statute prohibiting the making of the Offer, the
Company will make a good faith effort to comply with such statute. If, after
such good faith effort, the Company cannot comply with such statute, the Offer
will not be made to, nor will tenders be accepted from or on behalf of, holders
of Shares in such state. In those jurisdictions whose securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of the Company by or one or more
registered brokers or dealers licensed under the laws of such jurisdictions.
BANKUNITED FINANCIAL CORPORATION
July 16, 1997
19
<PAGE>
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
The following table sets forth the name, business address, present
principal occupation or employment and any other material occupations,
positions, offices or employments during the last five years of the directors
and executive officers of the Company. Unless otherwise indicated, all
occupations, positions, offices or employments listed opposite any individual's
name were held by such individual during the course of the last five years. Each
individual listed below is a citizen of the United States.
POSITIONS WITH COMPANY
NAME AGE AND BUSINESS EXPERIENCE
Alfred R. Camner 52 Director, Chairman of the Board, Chief
255 Alhambra Circle Executive Officer and President of the
Coral Gables, FL 33134 Company (1993 to present); Director,
Chairman of the Board and Chief Executive
Officer (1984 to present) and President
(1984 to 1993, November 1994 to present)
of the Bank; Senior Managing Director
(1996 to present) and Managing Director
of Stuzin and Camner, Professional
Association, attorneys-at-law (1973 to
present); Director and member of the
Executive Committee of the Board of
Directors of Loan America Financial
Corporation, a national mortgage banking
company (1985 to 1994); Director of CSW
Associates, Inc., an asset management
firm (1990 to 1995).
Lawrence H. Blum 53 Director and Vice Chairman of the Board
Rachlin, Cohen & Holtz of the Company (1993 to present) and the
1 S.E. 3rd Ave., 10th Floor Bank (1984 to present); Managing Director
Miami, FL 33131 (1992 to present) and partner (1974 to
present) of Rachlin, Cohen & Holtz,
certified public accountants.
Albert J. Finch(l) 59 Director and Vice Chairman of the Company
15 Dogwood Road and the Bank (November 1996 to present);
Hollywood, FL 33021 President and sole owner of Finch
Financial, Inc., a financial consulting
firm (November 1996 to present);
Director, Chairman of the Board and Chief
Executive Officer of Suncoast Savings and
Loan Association, FSA ("Suncoast") (1985
to November 1996); Chief Operating
Officer and President of Suncoast (1992
to November 1996).
James A. Dougherty 46 Director (December 1995 to present) and
255 Alhambra Circle Executive Vice President of the Company
Coral Gables, FL 33134 (1994 to present); Director, Executive
Vice President and Chief Operating
Officer of the Bank (1994 to present);
Executive Vice President of Retail
Banking, Intercontinental Bank (1989 to
1994).
Earline G. Ford 53 Director, Executive Vice President and
255 Alhambra Circle Treasurer of the Company (1993 to
Coral Gables, FL 33134 present); Director (1984 to present),
Executive Vice President (1990 to
present), Senior Vice President-
Administration (1988 to 1990), Treasurer
(1984 to present) and Vice President-
Administration (1984 to 1988) of the
Bank; Legal Administrator of Stuzin and
Camner, Professional Association,
attorneys-at-law (1973 to 1996); Vice
Chairman of CSW Associates, Inc., an
asset management firm (1990 to 1995).
A-1
<PAGE>
POSITIONS WITH COMPANY
NAME AGE AND BUSINESS EXPERIENCE
Marc D. Jacobson 54 Director of the Company (1993 to present)
Head-Beckham Ins. Agcy. and the Bank (1984 to present); Vice
3050 Biscayne Blvd. President of Head-Beckham Insurance
Suite 412 Agency, Inc. (1990 to present).
Miami, FL 33137
Allen M. Bernkrant 65 Director of the Company (1993 to present)
Heritage Manufacturing and the Bank (1985 to present); Private
4600 N.W. 135 St. investor in Miami, Florida (1990 to
Opalocka, FL 33054 present).
Irving P. Cohen(l) 55 Director of the Company and the Bank
Thompson, Hine and Flory (1996 to present); Director of Suncoast
1920 N Street, N.W. (1988 to 1996); Partner, Thompson Hine
Suite 800 & Flory, attorneys at law (1995 to
Washington, DC 20036 present); Parter, Semmes Bowen & Semmes,
attorneys at law (1990 to 1995).
Bruce Friesner 53 Director of the Company and the Bank
F&G Associates (1996 to present); Director of Loan
5431 N. 36th Court America Financial Corporation, a
Hollywood, FL 33021 national mortgage banking company
(1990-1994); Partner of F&G Associates,
a commercial real estate development
company (1972 to present).
Patricia L. Frost 58 Director of the Company (1993 to present)
4400 Biscayne Boulevard and the Bank (1990 to present); Private
Miami, FL 33137 investor in Miami, Florida (1993 to
present); Principal, West Laboratory
School, Coral Gables, Florida (1970 to
1993).
Elia J. Giusti(l) 62 Director of the Company and the Bank
Lee Giusti Realty, Inc. (1996 to present); Director of Suncoast
900 E. Broward Blvd. (1990 to 1996); President and principal
Suite A owner of Lee Giusti Realty, Inc. a real
Ft. Lauderdale, FL 33301 estate and mortgage brokerage firm (1982
to present).
Marc Lipsitz 55 Director and Secretary of the Company
550 Biltmore Way (1996 to present); Managing Director
Coral Gables, FL 33134 (1996 to present) of Stuzin & Camner,
P.A.; General Counsel of Jefferson
National Bank (1993-1996); Partner,
Stroock Stroock & Lavan, attorneys at law
(1991-1993).
Norman E. Mains(l) 53 Director of the Company and the Bank
Chicago Mercantile Exchange (1996 to present); Director of Suncoast
10 South Wacker Drive (1985 to 1996); Chief Economist and
North Tower - 6th Floor Director of Research for the Chicago
Chicago, IL 60606 Mercantile Exchange (1994 to present);
President and Chief Operating Officer of
Rodman & Renshaw Capital Group, Inc., a
securities broker/dealer firm (1991 to
1994).
A-2
<PAGE>
POSITIONS WITH COMPANY
NAME AGE AND BUSINESS EXPERIENCE
Neil Messinger 58 Director of the Company and the Bank
Baptist Hospital (1996 to present); Radiologist;
8900 N. Kendall Drive President, Radiological Associates, P.A.
Miami, FL (1986 to present); Chairman of Imaging
Services of Baptist Hospital (1986 to
present).
Christina Cuervo Migoya 31 Director of the Company and the Bank
Beacon Council (1995 to present); Executive Vice
80 S.W. 8th Street President, the Beacon Council (1996 to
Miami, FL 33130 present); Assistant City Manager and
Chief of Staff of the City of Miami (1992
to present); Assistant Vice President of
United National Bank (1992); Assistant
Vice President, First Union National Bank
(formerly Southeast Bank, N.A.) (1986
to 1992).
Anne W. Solloway (2) 80 Director of the Company (1993 to present)
8124 S.W. 87th Terrace and the Bank (1985 to present); Private
Miami, FL 33143 investor in Miami, Florida.
OFFICERS OF THE COMPANY
AND/OR THE BANK WHO
ARE NOT DIRECTORS:
Charles A. Arnett 48 Executive Vice President of the Bank
255 Alhambra Circle (1995 to present); Executive Vice
Coral Gables, FL 33134 President of Intercontinental Bank
(1991 to 1995); President and Chief
Executive officer of Northridge Bank
(1990-1991).
Samuel A. Milne 46 Executive Vice President (1996 to
255 Alhambra Circle present) and Senior Vice President and
Coral Gables, FL 33134 Chief Financial Officer of the Company
and the Bank (May 1995 to present);
Senior Vice President and Chief Financial
Officer, Consolidated Bank (1992 to
1995); Senior Vice President, Southeast
Bank, N.A. (1984 to 1991).
Donald Putnam 40 Executive Vice President of the Bank
255 Alhambra Circle (1996 to present); Senior Vice President
Coral Gables, FL 33134 and Regional Sales Manager, NationsBank
of Florida, N.A. (1996); Senior Vice
President (1994 to 1996), and First Vice
President (1987-1994), of Citizens
Federal Bank, a Federal Savings Bank.
Nancy L. Ashton 42 Senior Vice President and Assistant
255 Alhambra Circle Secretary of the Company (1993 to
Coral Gables, FL 33134 present); Senior Vice President (1990 to
present), Vice President (1988 to 1990),
and Assistant Vice President (1984 to
1988) of the Bank.
Jessica Atkinson 41 Senior Vice President of the Bank (1995
255 Alhambra Circle to present); Vice President (1991 to
Coral Gables, FL 33134 1995) and Southeast Regional Director
(1989 to 1991) of American Savings of
Florida, F.S.B.
A-3
<PAGE>
POSITIONS WITH COMPANY
NAME AGE AND BUSINESS EXPERIENCE
Pedro J. Gomez 42 Senior Vice President of the Bank (1995
255 Alhambra Circle to present); Vice President, First Union
Coral Gables, FL 33134 National Bank of Florida (1991 to 1995);
Vice President of Southeast Bank, N.A.
(1978 to 1991).
Anne Lehner-Garcia 35 Senior Vice President and Secretary of
255 Alhambra Circle the Bank (1993 to present); Senior Vice
Coral Gables, FL 33134 President (1990 to present), Vice
President (1987 to 1990) and Assistant
Vice President (1986 to 1987) of the
Bank.
Teresa Pacin 42 Senior Vice President of the Bank (1995
255 Alhambra Circle to present); Vice President, NationsBank
Coral Gables, FL 33134 of Florida, N.A. (1994 to 1995); Vice
President, First Union National Bank of
Florida (1985 to 1994).
(1) Under the merger agreement with Suncoast, Messrs. Mains, Guisti, and
Cohen were appointed directors of the Company and the Bank, and Mr.
Finch was appointed as a Director and a Vice Chairman of the Company
and the Bank.
(2) Anne W. Solloway is Alfred R. Camner's mother.
---------------
All executive officers serve at the discretion of the Board of
Directors and are elected annually by the Board.
A-4
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted from
Eligible Institutions. The Letter of Transmittal and certificates for Shares
should be sent or delivered by each shareholder of the Company or his or her
broker, dealer, bank or trust company to the Depositary at its address set forth
below.
The Depositary:
AMERICAN STOCK TRANSFER AND TRUST COMPANY
TO: AMERICAN STOCK TRANSFER & TRUST COMPANY, DEPOSITARY
<TABLE>
<CAPTION>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
40 Wall Street (For Eligible Institutions Only) 40 Wall Street
New York, NY 10005 (718) 234-5001 New York, NY 10005
To Confirm Receipt of Facsimile:
(212) 936-5500
</TABLE>
Any questions or requests for assistance may be directed to the
Information Agent at the telephone number and address listed below. Requests for
additional copies of this Offer to Purchase, the Letter of Transmittal or other
tender offer materials may be directed to the Information Agent and such copies
will be furnished promptly at the Company's expense. Stockholders may also
contact their local broker, dealer, commercial bank or trust company for
assistance concerning the Offer.
The Information Agent:
Shareholder Communications Corporation
17 State Street, New York, NY 10004
Tel: (800) 733-8481, Ext. 481 (toll free).
Schedule 13E-4 Exhibit (a)(7)
BANKUNITED FINANCIAL CORPORATION
255 Alhambra Circle
Coral Gables, Florida 33134
August 11, 1997
Dear Stockholder:
Recently you were mailed materials concerning BankUnited's offer to
purchase any and all of the outstanding shares of BankUnited's 9% Noncumulative
Perpetual Preferred Stock, (the "Shares") at a price of $10.25 per Share (the
"Offer"). We want to remind you that if you plan on tendering your Shares,
instructions must be received at the depositary by 5:00 P.M. FRIDAY, AUGUST 15,
1997. Participation in the Offer is completely voluntary on your behalf. If you
do not wish to tender your Shares, you may continue to hold them for as long as
you see fit or the Company publicly redeems the Shares, which it is permitted
to do at any time after September 30, 1998 at a price of $10.00 per Share. Your
tender of Shares, if accepted by the Company, will give rise to a 1997 tax
obligation on the purchase price received for the Shares, whereas a redemption
of the Shares in 1998 would give rise to a 1998 tax obligation on the redemption
price.
The Company is aware that on three occasions in the past two quarters,
and on 13 occasions in the past three years, the Shares have traded over
the offer price of $10.25 per share. See Section 10. The Company is unaware of
any reason for these occasional increases in the trading price of the Shares,
and does not believe these isolated occurrences impair the fairness of the
Offer.
The Offer reflects the Company's continuing policy of seeking to
replace higher cost capital with lower cost capital. Recently, BankUnited
Capital II, a subsidiary of the Company, issued $46 million of 9.60% Cumulative
Trust Preferred Securities (the "Trust Preferred Securities"), the dividends
on which are tax deductible. If $11.50 million of the proceeds from the issuance
of the Trust Preferred Securities are used to purchase all the outstanding
shares of the 9% Non-Cumulative Perpetual Preferred Stock, the Company's after
tax savings would be approximately $350,000 annually, since dividends on the
9% Non-Cumulative Perpetual Preferred Stock are not tax deductible.
You should be advised the Company's purchase of Shares will reduce the
number of holders of Shares and the number of shares that might otherwise trade
publicly, and depending on the number of Shares purchased, could adversely
affect the liquidity and market value of the remaining Shares held by the public
or result in the Shares no longer being eligible for the listing on the NASDAQ
NMS.
If you have any questions please call the information agent for the
Offer, Shareholder Communications Corporation at 1-800-733-8481 Ext. 481.
Operators will be available between the hours of 9:00 a.m. and 11:00 p.m.
Eastern Time.
Very truly yours,
/s/ ALFRED R. CAMNER
-------------------
Alfred R. Camner
