As filed with the Securities and Exchange Commission on March 24, 1999
Registration No. 333- ______
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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
1996 INCENTIVE COMPENSATION AND STOCK AWARD PLAN, AS AMENDED
(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 331314
(305) 442-4994
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<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 registered (1) per unit offering price fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock................................. 2,472,335 $6.6563(2)(3) $9,984,450 $2,775.68
shares (2)(3)
- -------------------------------------------------------------------------------------------------------------------------
Class B Common Stock................................. 2,472,335 $6.6563(2)(3) $9,984,450 $2,775.68
shares (2)(3)
- -------------------------------------------------------------------------------------------------------------------------
Noncumulative Convertible Preferred Stock, Series B.. 550,000 $9.9572(2)(3) $5,476,460 $1,522.46
shares (2)(3)
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<FN>
(1) 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. The number of
securities registered also includes the number of shares of Class A Common
Stock and Class B Common Stock that would be issued, or reserved for
issuance, due to the conversion of convertible securities which may be
granted under the BankUnited Financial Corporation 1996 Incentive
Compensation and Stock Award Plan, as amended.
(2) 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 March 22, 1999,
as quoted on the Nasdaq National Market System. Pursuant to Rule 457(i)
under the Securities Act, the maximum aggregate offering price is based
upon 1,500,000 shares of Class A Common Stock and 1,500,000 shares of
Class B Common Stock, which does not include an additional 972,335 shares
of Class A common stock and Class B common stock which would be issuable
upon conversion of the shares of Noncumulative Convertible Preferred
Stock, Series B.
(3) Neither the Class B Common Stock nor the Noncumulative Convertible
Preferred Stock, Series B is publicly traded, but each share of Class B
Common Stock is convertible into one share of Class A Common Stock, and
each share of Noncumulative Convertible Preferred Stock, Series B is
convertible into 1.4959 shares of Class B Common Stock. Therefore, the
market price of the Class A Common Stock is being used solely for purposes
of calculating the registration fee.
</FN>
</TABLE>
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This Registration Statement shall become effective immediately upon filing
as provided in Rule 462 under the Securities Act.
<PAGE>
Pursuant to General Instruction E of Form S-8, BankUnited Financial
Corporation's Registration Statement No. 333-25595, as filed with the Securities
and Exchange Commission on April 22, 1997, which relates to shares of BankUnited
Financial Corporation's Class A Common Stock, Class B Common Stock and
Noncumulative Convertible Preferred Stock, Series B which may be issued pursuant
to the BankUnited Financial Corporation 1996 Incentive Compensation and Stock
Award Plan (the "Plan") is incorporated by reference herein. This Registration
Statement on Form S-8 is filed for the purpose of registering additional shares
of BankUnited Financial Corporation Class A Common Stock, Class B Common Stock
and Noncumulative Convertible Preferred Stock, Series B to be issued pursuant to
the Plan, as amended.
<PAGE>
Item 8. EXHIBITS.*
The following is a list of Exhibits to this Registration
Statement:
5.1 Opinion of Camner, Lipsitz and Poller, P.A. regarding the
legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Camner, Lipsitz and Poller, P.A. (set forth in
Exhibit 5.1 to 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, 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
2
<PAGE>
Section 13(a) or 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 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to Item 6 of this Registration Statement (as
incorporated by reference), or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than 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 Act and will be governed by the final adjudication of such
issue.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Coral Gables, State of Florida on March 24, 1999.
BANKUNITED FINANCIAL CORPORATION
By: /s/ Diane DeLella
----------------------------------------
Diane DeLella
Vice President, Chief Financial Officer
and Controller
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred R. Camner 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 March 24, 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 and Chief Operating Officer
- ------------------------------ and Director
MEHDI GHOMESHI
/s/ Lawrence H. Blum Vice Chairman of the Board and Director
- ------------------------------
LAWRENCE H. BLUM
4
<PAGE>
/s/ Earline G. Ford Executive Vice President, Treasurer and
- ------------------------------- Director
EARLINE G. FORD
/s/ Marc Lipsitz Director and Corporate Secretary
- ------------------------------
MARC LIPSITZ
/s/ Marc D. Jacobson Director
- ------------------------------
MARC D. JACOBSON
/s/ Allen M. Bernkrant Director
- ------------------------------
ALLEN M. BERNKRANT
/s/ Anne W. Solloway Director
- ------------------------------
ANNE W. SOLLOWAY
Director
- ------------------------------
NEIL MESSINGER
/s/ Bruce Friesner Director
- ------------------------------
BRUCE FRIESNER
/s/ Diane DeLella Vice President, Chief Financial
- ------------------------------ Officer and Controller
DIANE DELELLA
5
<PAGE>
Exhibit Index
SEQUENTIAL
EXHIBIT PAGE
NUMBER DESCRIPTION OF DOCUMENT NUMBER
- ------- ----------------------- ----------
5.1 Opinion of Camner, Lipsitz and Poller, P.A. regarding
the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Camner, Lipsitz and Poller, P.A. (set forth
in Exhibit 5.1 to this Registration Statement).
EXHIBIT 5.1
March 24, 1999
BankUnited Financial Corporation
255 Alhambra Circle
Coral Gables, Florida 33134
Ladies and Gentlemen:
We are acting as your counsel with regard to the issuance by BankUnited
Financial Corporation, a Florida corporation, of an additional 2,472,335 shares
of its Class A Common Stock, $.01 par value per share, an additional 2,472,335
shares of its Class B Common Stock, $.01 par value per share (collectively, the
"Common Stock"), and an additional 550,000 shares of its Noncumulative
Convertible Preferred Stock, Series B (the "Preferred Stock"), pursuant to the
BankUnited Financial Corporation 1996 Incentive Compensation and Stock Award
Plan, as amended (the "Plan").
We are familiar with the relevant documents and materials used in
preparing the Registration Statement on Form S-8 (the "Registration Statement")
which is being filed by BankUnited Financial Corporation to register the
additional shares of Common Stock and Preferred Stock to be issued pursuant to
the Plan. 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 Common Stock and Preferred 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 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 appearing on page 56
of BankUnited Financial Corporation's Annual Report on Form 10-K for the year
ended September 30, 1998.
/s/ PriceWaterhouseCoopers LLP
- ------------------------------
PRICEWATERHOUSECOOPERS LLP
Miami, Florida
March 22, 1999
