As filed with the Securities and Exchange Commission on February 10, 2000
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
1996 Incentive Compensation and Stock Award Plan
(as amended on january 26, 2000)
-----------------------------------------------
(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 70
Coral Gables, Florida 331314
(305) 442-4994
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
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 ............................... 250,000 $7.375(2)(3) $1,843,750 $ 512.56
shares (2)(3)
- ---------------------------------------------------------------------------------------------------------------------
Class B Common Stock ............................... 250,000 $7.375(2)(3) $1,843,750 $ 512.56
shares (2)(3)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(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 February 7,
2000, 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 250,000 shares of Class A Common Stock and 250,000 shares of
Class B Common Stock.
(3) The Class B Common Stock is not publicly traded, but each share of Class B
Common Stock is convertible into one share of Class A Common Stock.
Therefore, the market price of the Class A Common Stock is being used
solely for purposes of calculating the registration fee.
-------------
This Registration Statement shall become effective immediately upon filing
as provided in Rule 462 under the Securities Act.
<PAGE>
REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to General Instruction E of Form S-8, BankUnited Financial
Corporation's Registration Statements No. 333-25595 and 333-75003, as filed with
the Securities and Exchange Commission on April 22, 1997 and March 24, 1999,
respectively, which relate 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"), are
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 and Class B Common Stock to be issued pursuant
to the Plan, as amended.
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<PAGE>
Item 8. EXHIBITS.*
The following is a list of Exhibits to this Registration Statement:
3.1 Articles of Incorporation of BankUnited Financial Corporation
("BankUnited") (Exhibit 3.1 to BankUnited's Form 10-Q Report for
the quarter ended December 31, 1998, as filed with the Securities
and Exchange Commission on February 16, 1999).
3.2 Bylaws of BankUnited (Exhibit 3.2 to BankUnited's Form 10-K Report
for the year ended September 30, 1999, as filed with the Securities
and Exchange Commission on December 28, 1999).
4.1 Statement of Designation of Series 1 Class A Common Stock and Class
B Common Stock of BankUnited (included as an appendix to Exhibit
3.1).
4.2 Statement of Designation of Noncumulative Convertible Preferred
Stock, Series A of BankUnited (included as appendix to Exhibit
3.1).
4.3 Statement of Designation of Noncumulative Convertible Preferred
Stock, Series B of BankUnited (included as appendix to Exhibit
3.1).
4.4 Statement of Designation of Noncumulative Convertible Preferred
Stock, Series C of BankUnited (included as appendix to Exhibit
3.1).
4.5 Statement of Designation of Noncumulative Convertible Preferred
Stock, Series C-II 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, as filed with the Securities and Exchange
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).
2
<PAGE>
4.11 The Advances, Specific Collateral Pledge and Security Agreement
dated March 30, 1998 between the Bank and the Federal Home Loan
Bank of Atlanta (Exhibit 4.9 to the 1998 10-K).
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, 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).
24 Power of Attorney (set forth on the signature page 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, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
3
<PAGE>
(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 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.
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<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 February 10, 2000.
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 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 February 10, 2000 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
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<PAGE>
/S/ MARC LIPSITZ Director and Corporate Secretary
- ----------------------------------
MARC LIPSITZ
Executive Vice President, Treasurer and
- ---------------------------------- Director
EARLINE G. FORD
/S/ MARC D. JACOBSON Director
- ----------------------------------
MARC D. JACOBSON
/S/ ALLEN M. BERNKRANT Director
- ----------------------------------
ALLEN M. BERNKRANT
/S/ ANNE W. SOLLOWAY Director
- ----------------------------------
ANNE W. SOLLOWAY
/S/ NEIL H. MESSINGER Director
- ----------------------------------
NEIL H. MESSINGER
Director
- ----------------------------------
BRUCE FRIESNER
/S/ HUMBERTO LOPEZ Executive Vice President and Chief
- ---------------------------------- Financial Officer
HUMBERTO LOPEZ (Principal Accounting Officer)
Director
- ----------------------------------
BARRY SHULMAN
/S/ A. FREDERICK SCHILD Director
- ----------------------------------
A. FREDERICK SCHILD
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<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).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
EXHIBIT 5.1
February 10, 2000
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 250,000 shares of
its Class A Common Stock, $.01 par value per share and an additional 250,000
shares of its Class B Common Stock, $.01 par value per share (collectively, the
"Common 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 October 21, 1999 relating to the
financial statements, which appears in BankUnited Financial Corporation's Annual
Report on Form 10-K for the year ended September 30, 1999.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Miami, Florida
February 7, 2000
