As filed with the Securities and Exchange Commission on October 8, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BANKUNITED FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA 65-0377773
- ------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
255 Alhambra Circle
Coral Gables, Florida 33134
(305) 569-2000
---------------------------------------------------
(Address, including ZIP Code, and telephone number,
including area code, of registrant's principal executive offices)
BankUnited Financial Corporation
BankUnited 401(K) Profit Sharing Plan
-------------------------------------
(Full title of the plan)
Alfred R. Camner
Chairman of the Board
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
(305) 569-2000
---------------------------------------------------------
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copies to:
Marsha D. Bilzin, Esq.
Camner, Lipsitz and Poller,
Professional Association
550 Biltmore Way, Suite 700
Coral Gables, Florida 33134
(305) 442-4994
----------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
Proposed Proposed
maximum maximum Amount of
Title of each class Amount to be offering price aggregate registration
of securities to be registered(1) registered (2) per unit offering price fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock.............................. 62,500 $8.03125(3) $501,953 $140
shares (3)
=========================================================================================================================
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the BankUnited 401(k) Profit
Sharing Plan.
(2) Pursuant to Rule 416 under the Securities Act of 1933 (the "Securities
Act"), the number of securities registered hereby includes an undetermined
number of shares resulting from any stock splits, stock dividends or
similar transactions relating to the registered securities.
(3) Pursuant to Rule 457(h)(1) and 457(c) under the Securities Act, estimated
for the purpose of calculating the registration fee based on the average
of the bid and asked prices of the Class A Common Stock on October 5,
1999, as quoted on the Nasdaq National Market System.
</FN>
</TABLE>
----------
This Registration Statement shall become effective immediately upon filing
as provided in Rule 462 under the Securities Act.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ----------
* The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, shall
constitute a prospectus which meets the requirements of Section 10(a) of the
Securities Act of 1933.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents for BankUnited Financial Corporation
("BankUnited") are incorporated by reference herein (Commission File No.
5-43936):
(a) BankUnited's Annual Report on Form 10-K for the fiscal
year ended September 30, 1998, filed with the Commission on December 29, 1998.
(b) BankUnited's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998, filed with the Commission on February 16, 1999.
(c) BankUnited's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, filed with the Commission on May 17, 1999.
(d) BankUnited's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, filed with the Commission on August 16, 1999.
(e) BankUnited's Current Reports on Form 8-K dated November 9,
1998, December 21, 1998, January 28, 1999, February 3, 1999 and April 19, 1999,
filed with the Commission on November 12, 1998, December 21, 1998, January 28,
1999, February 3, 1999, and April 19, 1999, respectively.
(f) BankUnited's Current Report on Form 8-K dated March 5,
1993 filed with the Commission to register BankUnited's Class A Common Stock
under Section 12(g) of the Securities Exchange Act of 1934, as amended.
(g) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year referred to in (a) above.
All documents filed with the Commission by BankUnited pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus, but prior to the termination of the offering to which this
Prospectus relates, shall be deemed to be incorporated herein by reference and
such documents will be deemed to be a part hereof from the date of filing of
such documents. Any statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference herein will be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded will not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
2
<PAGE>
Item 4. DESCRIPTION OF SECURITIES.
Class A Common Stock
The Class A Common Stock has been registered pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended. Accordingly, a description
of the Class A Common Stock is not required herein.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A Common Stock offered
hereby will be passed upon for BankUnited by Camner, Lipsitz and Poller,
Professional Association ("Camner, Lipsitz and Poller") Miami, Florida.
Alfred R. Camner, Chairman of the Board, Chief Executive
Officer and a Director of BankUnited, is the senior managing director and a
shareholder of Camner, Lipsitz and Poller, and Marc Lipsitz, Secretary and a
Director of BankUnited, is the managing director of Camner, Lipsitz and Poller.
As of September 30, 1999 directors and employees of Camner, Lipsitz and Poller
directly and indirectly owned in the aggregate 289,306 shares of BankUnited's
Class A Common Stock, 826,111 shares of BankUnited's Class B Common Stock and
640,021 shares of BankUnited's Preferred Stock (including shares that may be
acquired by the exercise of options, but not including shares which would be
received upon the conversion of other classes of stock).
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Articles of Incorporation of BankUnited
provides that BankUnited shall indemnify its officers and directors to the
fullest extent permitted by law.
The Bylaws of BankUnited provide that BankUnited will
indemnify any person against whom an action is brought or threatened because
that person is or was a director, officer or employee of BankUnited for any
amount for which that person becomes liable under a judgment in such action and
reasonable costs and expenses, including attorneys' fees. Such indemnification
may only be made, however, if (i) final judgment on the merits is in his or her
favor or (ii) in case of settlement, final judgment against him or her or final
judgment in his or her favor, other than on the merits, if a majority of the
Board of Directors of BankUnited determines that he or she was acting in good
faith within the scope of his or her duties and for a purpose he or she could
have reasonably believed under the circumstances was in the best interests of
BankUnited.
Section 607.0831 of the Florida Business Corporation Act
provides, among other things, that a director is not personally liable for
monetary damages to a company or any other person for any statement, vote,
decision, or failure to act, by the director, regarding corporate management or
policy, unless the director breached or failed to perform his or her duties as a
director and such breach or failure constitutes (a) a violation of criminal law,
unless the director had reasonable cause to believe his or her
3
<PAGE>
conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (b) a transaction from which the director derived an improper personal
benefit; (c) a circumstance under which the liability provisions of Section
607.0834 of the Florida Business Corporation Act (relating to the liability of
the directors for improper distributions) are applicable; (d) willful misconduct
or a conscious disregard for the best interest of BankUnited in the case of a
proceeding by or in the right of BankUnited to procure a judgment in its favor
or by or in the right of a shareholder; or (e) recklessness or an act or
omission in bad faith or with malicious purpose or with wanton and willful
disregard of human rights, safety or property, in a proceeding by or in the
right of someone other than such company or a shareholder.
Section 607.0850 of the Florida Business Corporation Act
authorizes, among other things, BankUnited to indemnify any person who was or is
a party to any proceeding (other than an action by or in the right of
BankUnited) by reason of the fact that he is or was a director, officer,
employee or agent of BankUnited (or is or was serving at the request of
BankUnited in such a position for any entity) against liability incurred in
connection with such proceeding, if he or she acted in good faith and in a
manner reasonably believed to be in the best interests of BankUnited and, with
respect to criminal proceedings, had no reasonable cause to believe his or her
conduct was unlawful.
Florida law requires that a director, officer or employee be
indemnified for expenses (including attorneys' fees) to the extent that he or
she has been successful on the merits or otherwise in the defense of any
proceeding. Florida law also allows expenses of defending a proceeding to be
advanced by a company before the final disposition of the proceedings, provided
that the officer, director or employee undertakes to repay such advance if it is
ultimately determined that indemnification is not permitted.
Florida law states that the indemnification and advancement of
expenses provided pursuant to Section 607.0850 is not exclusive and that
indemnification may be provided by a company pursuant to other means, including
agreements or bylaw provisions. Florida law prohibits indemnification or
advancement of expenses, however, if a judgment or other final adjudication
establishes that the actions of a director, officer or employee constitute (i) a
violation of criminal law, unless he or she had reasonable cause to believe his
or her conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (ii) a transaction from which such person derived an
improper personal benefit; (iii) willful misconduct or conscious disregard for
the best interests of BankUnited in the case of a derivative action or a
proceeding by or in the right of a shareholder, or (iv) in the case of a
director, a circumstance under which the liability provisions of Section
607.0834 of the Florida Business Corporation Act (relating to the liability of
directors for improper distributions) are applicable.
BankUnited has purchased director and officer liability
insurance that insures directors and officers against liabilities in connection
with the performance of their duties.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
<PAGE>
Item 8. EXHIBITS.*
The following is a list of Exhibits to this Registration
Statement:
4.1 Articles of Incorporation of BankUnited (Exhibit 3.1 to
BankUnited's Form 10-Q Report for the quarter ended December
31, 1998, as filed with the Commission on February 16, 1999).*
4.2 Bylaws of BankUnited (Exhibit 4.5 to BankUnited's Form S-8
Registration Statement, File No. 333-43211, as filed with the
Securities and Exchange Commission on November 14, 1996).*
4.3 Statement of Designation of the Class A Common Stock and Class
B Common Stock of BankUnited (included as an appendix to
Exhibit 3.1).*
4.4 Statement of Designation of 8% Noncumulative Convertible
Preferred Stock, Series A of BankUnited (included as appendix
to Exhibit 3.1).*
4.5 Statement of Designation of Noncumulative Convertible
Preferred Stock, Series B of BankUnited (included as appendix
to Exhibit 3.1).*
4.6 Statement of Designation of 8% Noncumulative Convertible
Preferred Stock, Series 1993 of BankUnited (included as
appendix to Exhibit 3.1).*
4.7 Statement of Designation of 9% Noncumulative Perpetual
Preferred Stock of BankUnited (included as an appendix to
Exhibit 3.1).*
4.8 Statement of Designation of 8% Noncumulative Convertible
Preferred Stock, Series 1996 of BankUnited (included as
appendix to Exhibit 3.1).*
4.9 Form of Letter Agreement between BankUnited and the holders of
shares of BankUnited's Noncumulative Convertible Preferred
Stock, Series B (Exhibit 4.7 to BankUnited's Form 10-K Report
for the year ended September 30, 1998, filed with the
Commission on December 29, 1998 [the "1998 10-K"]).*
4.10 Forms of Series 15A-F, Series 18E and Series 20A-F of
Subordinated Notes of the Bank (Exhibit 4.3 to BankUnited's
Form S-4 Registration Statement, File No. 33-55232, as filed
with the Securities and Exchange Commission on December 2,
1992).*
4.11 The Advances, Specific Collateral Pledge and Security
Agreement dated March 30, 1998 between BankUnited, FSB and the
Federal Home Loan Bank of Atlanta (Exhibit 4.9 to the 1998
10-K).*
5
<PAGE>
4.12 Indenture dated November 4, 1998 between the Bank and the Bank
of New York to which the Federal Home Loan Bank of Atlanta has
joined as a consenting party (the "Indenture") (Exhibit 4.91
to the 1998 10-K).*
4.13 Form of the Bank's Senior Note (Fixed Rate) issuable pursuant
to the Indenture (Exhibit 4.92 to the 1998 10-K).*
4.14 Form of the Bank's Senior Note (Floating Rate) issuable
pursuant to the Indenture (Exhibit 4.93 to the 1998 10-K).*
4.15 The Letter of Credit Reimbursement Agreement dated November
14, 1998 between the Bank and the Federal Home Loan Bank of
Atlanta (Exhibit 4.94 to the 1998 10-K).*
5.1 Opinion of Camner, Lipsitz and Poller, Professional
Association regarding the legality of the securities being
registered.
5.2 Internal Revenue Service determination letter that the plan is
qualified under Section 401 of the Internal Revenue Code.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Camner, Lipsitz and Poller, Professional
Association (set forth in Exhibit 5.1 to this Registration
Statement).
24.1 Power of attorney (set forth on the signature page in Part II
of this Registration Statement).
- ----------
* Exhibits containing a parenthetical reference in their description are
incorporated herein by reference from the documents described in the
parenthetical reference.
Item 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which,
6
<PAGE>
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
7
<PAGE>
SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coral Gables, State of Florida on October 8, 1999.
BANKUNITED FINANCIAL CORPORATION
By: /s/ ALFRED R. CAMNER
--------------------------------
Alfred R. Camner
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred R. Camner, Earline G. Ford and
Marc Jacobson and each of them his true and lawful attorney-in-fact and agent
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitute, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on October 8, 1999 by the following
persons in the capacities indicated.
/s/ ALFRED R. CAMNER Chairman of the Board, Chief Executive
- --------------------------- Officer, and Director
ALFRED R. CAMNER (Principal Executive Officer)
/s/ MEHDI GHOMESHI President, Chief Operating Officer
- --------------------------- and Director
MEHDI GHOMESHI
Vice Chairman of the Board and Director
- ---------------------------
LAWRENCE H. BLUM
8
<PAGE>
/s/ EARLINE G. FORD Executive Vice President, Treasurer and
- --------------------------- Director
EARLINE G. FORD
/s/ MARC LIPSITZ Corporate Secretary and Director
- ---------------------------
MARC LIPSITZ
/s/ MARC JACOBSON Director
- ---------------------------
MARC D. JACOBSON
/s/ ALLEN BERNKRANT Director
- ---------------------------
ALLEN M. BERNKRANT
/s/ ANNE SOLLOWAY Director
- ---------------------------
ANNE W. SOLLOWAY
/s/ NEIL MESSINGER Director
- ---------------------------
NEIL MESSINGER
Director
- ---------------------------
BRUCE FRIESNER
Director
- ---------------------------
FREDERICK SCHILD
Director
- ---------------------------
BARRY SHULMAN
/s/ DIANE DELELLA Senior Vice President, Chief Financial Officer and
- --------------------------- Controller
DIANE DELELLA
9
<PAGE>
The Plan
Pursuant to the requirements of the Securities Act of 1933, the
trustees have duly caused this registration statement to be signed on their
behalf, thereunto duly authorized in the cities and on the dates indicated
below.
/s/ HUMBERTO LOPEZ Trustee OCTOBER 8, 1999
- ----------------------------------- Coral Gables, Florida
HUMBERTO LOPEZ
/s/ CRAIG ALLEN Trustee OCTOBER 8, 1999
- ----------------------------------- Coral Gables, Florida
CRAIG ALLEN
/s/ CRISTINA ANDREANA Trustee OCTOBER 8, 1999
- ----------------------------------- Stamford, Connecticut
COLUMBUS CIRCLE TRUST COMPANY
By: CRISTINA ANDREANA
-------------------------------
Title: VICE PRESIDENT
10
<PAGE>
Exhibit Index
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
- ------ ----------------------- ------
5.1 Opinion of Camner, Lipsitz and Poller, Professional
Association regarding the legality of the securities being
registered.
5.2 Internal Revenue Service determination letter that the plan
is qualified under Section 401 of the Internal Revenue Code.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Camner, Lipsitz and Poller, Professional
Association (set forth in Exhibit 5.1 to this Registration
Statement).
EXHIBIT 5.1
October 8, 1999
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
Ladies and Gentlemen:
We are acting as your counsel with regard to the preparation and filing
by BankUnited Financial Corporation, a Florida corporation ("BankUnited"), of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), in connection with the offer and sale of up to
62,500 shares of BankUnited's Class A Common Stock, $.01 par value per share
(the "Class A Common Stock") and an indeterminate number of plan interests,
pursuant to the provisions of the BankUnited 401(k) Profit Sharing Plan (the
"Plan").
We are familiar with the relevant documents and materials used in
preparing the Registration Statement. Based on our review of such relevant
documents and materials, and of such other documents and materials as we have
deemed necessary and appropriate, we are of the opinion that the shares of Class
A Common Stock when issued pursuant to the provisions of the Plan, will be
legally issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
CAMNER, LIPSITZ AND POLLER
PROFESSIONAL ASSOCIATION
/s/ Camner, Lipsitz and Poller, Professional Association
Exhibit 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. Box 941
ATLANTA, GA 30370
Employer Identification Number:
Date: Nov. 20, 1992 59-2354701
File Folder Number:
BANKUNITED A SAVINGS BANK 650044876
c/o SHARON LEE JOHNSON Person to Contact:
1570 MADRUGA AVENUE 4TH FLOOR LYNN STOREY
CORAL GABLES, FL 33146 Contact Telephone Number:
(404) 331-6825
Plan Name:
BANKUNITED 401K PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the plan adopted on June
29, 1992.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification and
demonstrations are considered an integral part of this letter. Accordingly, YOU
MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT BE
ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
Letter 835 (DO/CG)
<PAGE>
-2-
BANKUNITED A SAVINGS BANK
If you have questions concerning the matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Paul Williams
Paul Williams
District Director
Enclosures:
Publication 794
PWBA515
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated December 7, 1998 relating to the
financial statements, which appears in BankUnited Financial Corporation's Annual
Report on Form 10-K for the year ended September 30, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Miami, Florida
October 8, 1999
