<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996
REGISTRATION NO. 333-06229
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
BANK UNITED CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 6711 13-3528556
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
SUITE 500
50 CHARLES LINDBERGH BLVD.
UNIONDALE, NY 11553
(516) 745-6644
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SALVATORE A. RANIERI, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
SUITE 500
50 CHARLES LINDBERGH BLVD.
UNIONDALE, NY 11553
(516) 745-6644
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copies to:
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<S> <C> <C>
WILLIAM F. BAVINGER, ESQ. CRAIG M. WASSERMAN, ESQ. JAMES F. MUNSELL, ESQ.
BRYAN CAVE LLP WACHTELL, LIPTON, ROSEN & KATZ CLEARY, GOTTLIEB, STEEN & HAMILTON
700 THIRTEENTH STREET 51 WEST 52ND STREET ONE LIBERTY PLAZA
WASHINGTON, D.C. 20005 NEW YORK, NY 10019 NEW YORK, NY 10006
(202) 508-6037 (212) 403-1000 (212) 225-2000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
promptly as practicable after the effective date of
this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / / ________
If this Form is a post-effective amendment filed pursuant to Rule 462(e)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
BANK UNITED CORP.
CROSS-REFERENCE SHEET PURSUANT TO REGULATION S-K, ITEM 501(B)
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<CAPTION>
ITEM
NO. LOCATION IN PROSPECTUS
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I. Forepart of the Registration Statement and
Outside Front Cover Page of Prospectus.... Outside Front Cover Page
II. Inside Front and Outside Back Cover Pages
of Prospectus............................. Inside Front Cover Page; Table of Contents
III. Summary Information, Risk Factors and
Ratio of Earnings to Fixed Charges........ Prospectus Summary; Risk Factors; The
Company
IV. Use of Proceeds........................... Use of Proceeds
V. Determination of Offering Price........... Underwriting
VI. Dilution.................................. Not Applicable
VII. Selling Security Holders.................. Selling Stockholders
VIII. Plan of Distribution...................... Outside Front Cover Page; Underwriting
IX. Description of Securities to be
Registered................................ Outside Front Cover Page; Inside Front
Cover Page; Description of Capital Stock
X. Interests of Named Experts and Counsel.... Not Applicable
XI. Information with respect to the
Registrant................................ Outside Front Cover Page; Prospectus
Summary; Risk Factors; The Company; Use of
Proceeds; Dividend Policy; Capitalization;
Selected Consolidated Financial and Other
Data; Management's Discussion and Analysis
of Financial Condition and Results of
Operations; Business; Regulation;
Description of Properties; Legal
Proceedings; Management; Selling
Stockholders; Description of Capital
Stock; Underwriting; Legal Matters;
Experts; Available Information; Financial
Statements
XII. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................... Not Applicable
</TABLE>
<PAGE> 3
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered hereby, other than
underwriting discounts and commissions. All amounts are estimated except the
Securities and Exchange Commission (the "Commission") registration fee, the
National Association of Securities Dealers, Inc. ("NASD") filing fee and the
NASDAQ listing fee.
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<CAPTION>
PAYABLE BY
THE REGISTRANT
--------------
<S> <C>
SEC registration fee............................................ $
NASD filing fee.................................................
NASDAQ listing fee..............................................
Blue Sky fees and expenses......................................
Accounting fees and expenses....................................
Legal fees and expenses.........................................
Printing and engraving expenses.................................
Miscellaneous fees and expenses.................................
--------------
Total................................................. $
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by them in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation, a "derivative action") if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys' fees)
incurred in connection with the defense or settlement of such actions, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation. The
statute provides that it is not exclusive of other indemnification that may be
granted by a corporation's bylaws, disinterested director vote, stockholder
vote, agreement or otherwise.
The Restated Certificate of Incorporation of the Company (the
"Certificate") provides that each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and held harmless by
the Company to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense, liability and loss reasonably incurred or
suffered by such person in connection therewith. Such right to indemnification
includes the right to have the Company pay the expenses incurred in defending
any such proceeding in advance of its final disposition, subject to the
provisions of the DGCL. Such rights are not exclusive of any other right which
any person may have or thereafter acquire under any statute, provision of the
Certificate, By-Laws, agreement, vote of stockholders or disinterested directors
or otherwise. No repeal or modification of such provision will in any way
diminish or
II-1
<PAGE> 4
adversely affect the rights of any director, officer, employee or agent of the
Company thereunder in respect of any occurrence or matter arising prior to any
such repeal or modification. The Certificate also specifically authorizes the
Company to maintain insurance and to grant similar indemnification rights to
employees or agents of the Company.
The DGCL permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability for (i) any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (iv) any transaction from which the director
derived an improper personal benefit.
The Certificate provides that a director of the Company will not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except, if required by the DGCL as
amended from time to time, for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the DGCL, which concerns unlawful payments of
dividends, stock purchases or redemptions, or (iv) for any transaction from
which the director derived an improper personal benefit. Neither the amendment
nor repeal of such provision will eliminate or reduce the effect of such
provision in respect of any matter occurring, or any cause of action, suit or
claim that, but for such provision, would accrue or arise prior to such
amendment or repeal.
The Purchase Agreement provides for indemnification by the Underwriters of
the registrant, its Directors and officers, and by the registrant of the
Underwriters, for certain liabilities, including liabilities arising under the
Securities Act, and affords certain rights of contribution with respect thereto.
In addition, Lewis S. Ranieri, Salvatore A. Ranieri, and Scott A. Shay, who
are directors of the Company, may be entitled to indemnification from Hyperion
Partners L.P. and Hyperion Ventures L.P., the former upstream affiliates of the
Company. Such former upstream affiliates, at their sole discretion, may elect to
indemnify other persons who serve as directors or officers of the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Not applicable.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits. The following exhibits are filed as part of this Registration
Statement.
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<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION
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<S> <C>
1.1** -- Underwriting Agreement.
2.1 -- Form of Letter Agreement, by and among the general and limited partners of
Hyperion Partners, L.P., dated as of June 17, 1996, relating to certain
transactions consummated prior to the Offering.
2.2** -- Merger Agreement, dated as of June 17, 1996, by and between the Company and
Hyperion Holdings relating to the Merger.
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as amended.
3.2 -- Form of By-Laws of the Registrant.
4.1 -- Indenture, dated as of May 15, 1993, between the Registrant and Bank of New
York, as Trustee, relating to the Registrant's 8.05% Senior Notes due May
15, 1998.
</TABLE>
<TABLE>
<S> <C>
4.2 -- Form of 8.05% Senior Note due May 15, 1998 (included in the Indenture filed
as Exhibit 4.1 hereto).
4.3 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes
due May 15, 1998.
</TABLE>
II-2
<PAGE> 5
<TABLE>
<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION
- -------------- -------------------------------------------------------------------------------
<S> <C>
4.4 -- First Supplemental Indenture, dated as of January 23, 1995, between the
Registrant and the Bank of New York, as Trustee, relating to Registrant's
8.05% Senior Notes due May 15, 1998.
5.1** -- Opinion and consent of ______________ .
8** -- Opinion and consent of ______________ (Federal Tax Matters).
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC.
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993, among
the Bank, the Registrant, Hyperion Holdings, Hyperion Partners and the FDIC.
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC.
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and the
FSLIC.
10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the FSLIC.
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993, between the
Bank and the FDIC.
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988 among the
Bank, the Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC
(terminated).
10.5* -- Federal Stock Charter of the Bank and First Amendment to charter approved on
August 26, 1992.
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second Amendment
approved on October 30, 1992.
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on April
23, 1996.
10.6b -- Amended and Restated Bylaws of the Bank.
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share stated
value of the Bank.
10.7a* -- Certificate of Designation of Noncumulative Preferred Stock, Series A, of
the Bank.
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share stated
value, of the Bank.
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B, of
the Bank.
10.8 -- Data Processing Agreement, dated January 1, 1992, between the Bank and
Systematics Financial Services, Inc., and First Amendment (dated October 28,
1992) and Second Amendment (dated September 1, 1992).
10.8a -- Third Amendment, dated December 17, 1993, to the Data Processing Agreement,
dated January 1, 1992, between the Bank and Systematics Financial Services,
Inc.
10.8b -- Fourth Amendment, dated March 28, 1994, to the Data Processing Agreement,
dated January 1, 1992, between the Bank and Systematics Financial Services,
Inc.
10.8c -- Fifth Amendment, dated April 1, 1994 to the Data Processing Agreement, dated
January 1, 1992, between the Bank and Systematics Financial Services, Inc.
10.8d -- Sixth Amendment, dated February 26, 1996 to the Data Processing Agreement,
dated January 1, 1992, between the Bank and Systematics Financial Services,
Inc.
10.9 -- Management and Consulting Services Agreement, dated January 1, 1992, between
the Bank and Systematics Financial Services, Inc., and First Amendment
(dated March 18, 1992) and Second Amendment (dated September 1, 1992).
10.10 -- Lease Agreement, dated April 1, 1989, between the Bank and Homart
Development Co. (Leased premises at 3200 Southwest Freeway) and First
Amendment thereto dated January 31, 1990.
10.10a -- Second Amendment, dated November 14, 1994 to Lease Agreement dated April 1,
1989, between the Bank and Homart Development Co. (assigned to HD Delaware
Properties, Inc.).
10.10b -- Third Amendment, dated January 8, 1996 to Lease Agreement dated April 1,
1989 between the Bank and Homart Development Co. (predecessor in interest of
HMS Office, L.P.).
</TABLE>
II-3
<PAGE> 6
<TABLE>
<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION
- -------------- -------------------------------------------------------------------------------
<S> <C>
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and Greenway
Plaza, LTD. (Leased premises at 3800 Buffalo Speedway).
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry C.
Burkholder.
10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between the
Bank and Barry C. Burkholder.
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between the
Bank and Anthony J. Nocella.
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between the Bank
and George R. Bender.
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between the
Bank and Jonathon K. Heffron.
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between the Bank
and Leslie H. Green.
10.17 -- Management Incentive Plan, dated April 20, 1992.
10.18 -- Letter Agreement, dated January 5, 1990, between Hyperion Partners and
certain shareholders of the Registrant with respect to the provision of
managerial assistance to the Registrant.
10.22 -- Supplemental Executive Savings Plan of the Bank.
10.23 -- Directors Supplemental Savings Plan of the Bank.
12** -- Statement re: Calculation of Ratios of Earnings to Fixed Charges.
21** -- Subsidiaries of the Registrant.
23.1** -- Consent of Bryan Cave LLP (included in Exhibit 5.1).
23.2** -- Consent of Deloitte & Touche LLP, independent auditors.
24 -- Powers of Attorney (see the signature pages to the Form S-4 Registration
Statement).
26** -- Statement of Eligibility and Qualification of Trustee on Form T-1 of the
Bank of New York under the Trust Indenture Act of 1939.
99.2** -- Exchange Agent Agreement between Registrant and Bank of New York, as
Exchange Agent.
99.3 -- Complaint filed by the Registrant and certain of its affiliates against the
FDIC and certain other governmental agencies in the Southern District of
Texas, Galveston Division, C.A. No. G-93-461.
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
All other Exhibits have been filed previously.
(b) Financial Statement Schedules.
The Consolidated Financial Statements listed in the Index to Consolidated
Financial Statements contained in the Offering Circular are hereby incorporated
herein by reference.
Schedules to the Consolidated Financial Statements are not required under
the related instructions or are inapplicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the Underwriters
at the closing of the Offering specified in the Underwriting Agreement
certificates in such denominations and registered in such names as required by
the Underwriters to permit prompt delivery to each purchaser.
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<PAGE> 7
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-5
<PAGE> 8
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN UNIONDALE, STATE OF NEW YORK, ON THE 19TH DAY OF JUNE, 1996.
BANK UNITED CORP.
By /s/ LEWIS S. RANIERI
------------------------------------
CHAIRMAN OF THE BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS AMENDMENT HAS BEEN
SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE DATES
INDICATED BELOW.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- --------------------------------------------- ------------------------------- ---------------
<S> <C> <C>
(1) Principal Executive Officer:
/s/ LEWIS S. Chairman of the Board, June 19, 1996
RANIERI President and
- --------------------------------------------- Chief Executive Officer
Lewis S. Ranieri
(2) Principal Financial and Accounting
Officer:
/s/ ROBERT A. PERRO Vice President and June 19, 1996
- --------------------------------------------- Chief Financial Officer
Robert A. Perro
(3) Directors:
/s/ LEWIS S. RANIERI Director June 19, 1996
- ---------------------------------------------
Lewis S. Ranieri
/s/ SALVATORE A. RANIERI Director June 19, 1996
- ---------------------------------------------
Salvatore A. Ranieri
/s/ SCOTT A. SHAY Director June 19, 1996
- ---------------------------------------------
Scott A. Shay
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION PAGE
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<S> <C> <C>
1.1** -- Underwriting Agreement................................................
2.1 -- Form of Letter Agreement, by and among the general and limited
partners of Hyperion Partners, L.P., dated as of June 17, 1996,
relating to certain transactions consummated prior to the Offering....
2.2** -- Merger Agreement, dated as of June 17, 1996, by and between the
Company and Hyperion Holdings relating to the Merger..................
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as
amended...............................................................
3.2 -- Form of By-Laws of the Registrant.....................................
4.1 -- Indenture, dated as of May 15, 1993, between the Registrant and Bank
of New York, as Trustee, relating to the Registrant's 8.05% Senior
Notes due May 15, 1998................................................
4.2 -- Form of 8.05% Senior Note due May 15, 1998 (included in the Indenture
filed as Exhibit 4.1 hereto)..........................................
4.3 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior
Notes due May 15, 1998................................................
4.4 -- First Supplemental Indenture, dated as of January 23, 1995, between
the Registrant and the Bank of New York, as Trustee, relating to
Registrant's 8.05% Senior Notes due May 15, 1998......................
5.1** -- Opinion and consent of ______________ ...............................
8** -- Opinion and consent of ______________ (Federal Tax Matters)..........
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC.......
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993,
among the Bank, the Registrant, Hyperion Holdings, Hyperion Partners
and the FDIC..........................................................
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC.........
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and
the FSLIC.............................................................
10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the
FSLIC.................................................................
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993,
between the Bank and the FDIC.........................................
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988
among the Bank, the Registrant, Hyperion Holdings, Hyperion Partners,
and the FSLIC (terminated)............................................
10.5* -- Federal Stock Charter of the Bank and First Amendment to charter
approved on August 26, 1992...........................................
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second
Amendment approved on October 30, 1992................................
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on
April 23, 1996........................................................
10.6b -- Amended and Restated Bylaws of the Bank...............................
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share
stated value of the Bank..............................................
10.7a* -- Certificate of Designation of Noncumulative Preferred Stock, Series A,
of the Bank...........................................................
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share
stated value, of the Bank.............................................
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B,
of the Bank...........................................................
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION PAGE
- -------------- ------------------------------------------------------------------------- ----
<S> <C> <C>
10.8 -- Data Processing Agreement, dated January 1, 1992, between the Bank and
Systematics Financial Services, Inc., and First Amendment (dated
October 28, 1992) and Second Amendment (dated September 1, 1992)......
10.8a -- Third Amendment, dated December 17, 1993, to the Data Processing
Agreement, dated January 1, 1992, between the Bank and Systematics
Financial Services, Inc...............................................
10.8b -- Fourth Amendment, dated March 28, 1994, to the Data Processing
Agreement, dated January 1, 1992, between the Bank and Systematics
Financial Services, Inc...............................................
10.8c -- Fifth Amendment, dated April 1, 1994 to the Data Processing Agreement,
dated January 1, 1992, between the Bank and Systematics Financial
Services, Inc.........................................................
10.8d -- Sixth Amendment, dated February 26, 1996 to the Data Processing
Agreement, dated January 1, 1992, between the Bank and Systematics
Financial Services, Inc...............................................
10.9 -- Management and Consulting Services Agreement, dated January 1, 1992,
between the Bank and Systematics Financial Services, Inc., and First
Amendment (dated March 18, 1992) and Second Amendment (dated September
1, 1992)..............................................................
10.10 -- Lease Agreement, dated April 1, 1989, between the Bank and Homart
Development Co. (Leased premises at 3200 Southwest Freeway) and First
Amendment thereto dated January 31, 1990..............................
10.10a -- Second Amendment, dated November 14, 1994 to Lease Agreement dated
April 1, 1989, between the Bank and Homart Development Co. (assigned
to HD Delaware Properties, Inc.)......................................
10.10b -- Third Amendment, dated January 8, 1996 to Lease Agreement dated April
1, 1989 between the Bank and Homart Development Co. (predecessor in
interest of HMS Office, L.P.).........................................
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and
Greenway Plaza, LTD. (Leased premises at 3800 Buffalo Speedway).......
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry
C. Burkholder.........................................................
10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between
the Bank and Barry C. Burkholder......................................
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between
the Bank and Anthony J. Nocella.......................................
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between
the Bank and George R. Bender.........................................
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between
the Bank and Jonathon K. Heffron......................................
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between
the Bank and Leslie H. Green..........................................
10.17 -- Management Incentive Plan, dated April 20, 1992.......................
10.18 -- Letter Agreement, dated January 5, 1990, between Hyperion Partners and
certain shareholders of the Registrant with respect to the provision
of managerial assistance to the Registrant............................
10.22 -- Supplemental Executive Savings Plan of the Bank.......................
10.23 -- Directors Supplemental Savings Plan of the Bank.......................
12** -- Statement re: Calculation of Ratios of Earnings to Fixed Charges......
21** -- Subsidiaries of the Registrant........................................
23.1* -- Consent of Bryan Cave LLP (included in Exhibit 5.1)...................
23.2** -- Consent of Deloitte & Touche LLP, independent auditors................
24 -- Powers of Attorney (see the signature pages to the Form S-4
Registration Statement)...............................................
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
ITEM 601
REGULATION S-K
EXHIBIT
REFERENCE
NUMBER DESCRIPTION PAGE
- -------------- ------------------------------------------------------------------------- ----
<S> <C> <C>
26** -- Statement of Eligibility and Qualification of Trustee on Form T-1 of
the Bank of New York under the Trust Indenture Act of 1939............
99.2** -- Exchange Agent Agreement between Registrant and Bank of New York, as
Exchange Agent........................................................
99.3 -- Complaint filed by the Registrant and certain of its affiliates
against the FDIC and certain other governmental agencies in the
Southern District of Texas, Galveston Division, C.A. No. G-93-461.....
</TABLE>
- ---------------
* Filed herewith.
** To be filed by amendment.
All other Exhibits listed have been filed previously.
<PAGE> 1
EXHIBIT 10.5
FEDERAL STOCK CHARTER
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
HOUSTON, TEXAS
Section 1. Corporate Title. The full corporate title of the savings
bank is United Savings Association of Texas FSB.
Section 2. Office. The home office shall be located in Houston, Texas.
Section 3. Duration. The duration of the savings bank is perpetual.
Section 4. Purpose and Powers. The purpose of the savings bank is to
pursue any or all of the lawful objectives of a Federal savings bank chartered
under section 5 of the Home Owners' Loan Act and to exercise all of the express,
implied, and incidental powers conferred thereby and by all acts amendatory
thereof and supplemental thereto, subject to the Constitution and laws of the
United States as they are now in effect, or as they may hereafter be amended,
and subject to all lawful and applicable rules, regulations, and orders of the
Federal Home Loan Bank Board ("Board"). In addition, the savings bank may make
any investment and engage
<PAGE> 2
in any activity as may be specifically authorized by action of the Board,
including authorization by delegated authority, in connection with action
approving the issuance of the charter.
Section 5. Capital Stock. The total number of shares of all classes of
the capital stock which the savings bank has the authority to issue is
5,000,000, all of which shall be common stock of par value of $.01 per share.
The shares may be issued from time to time as authorized by the board of
directors without the approval of its shareholders, except as otherwise
provided in this Section 5 or to the extent that such approval is required by
governing law, rule, or regulation. The consideration for the issuance of the
shares shall be paid in full before their issuance and shall not be less than
the par value. Neither promissory notes nor future services shall constitute
payment or part payment for the issuance of shares of the savings bank. The
consideration for the shares shall be cash, tangible or intangible property (to
the extent direct investment in such property would be permitted to the savings
bank), labor, or services actually performed for the savings bank, or any
combination of the foregoing. In the absence of actual fraud in the
transaction, the value of such property, labor, or
<PAGE> 3
-3-
services, as determined by the board of directors of the savings bank, shall be
conclusive. Upon payment of such consideration, such shares shall be deemed to
be fully paid and nonassessable. In the case of a stock dividend, that part of
the surplus of the savings bank which is transferred to stated capital upon the
issuance of shares as a share dividend shall be deemed to be the consideration
for their issuance.
Except for shares issuable in connection with the conversion of the
savings bank from the mutual to stock form of capitalization, no shares of
common stock (including shares issuable upon conversion, exchange, or exercise
of other securities) shall be issued, directly or indirectly, to officers,
directors, or controlling persons of the savings bank other than as part of a
general public offering or as qualifying shares to a director, unless the
issuance or the plan under which they would be issued has been approved by a
majority of the total votes eligible to be cast at a legal meeting.
The holders of the common stock shall exclusively possess all voting
power. Each holder of shares of common stock shall be entitled to one vote for
each share held by such holder, except as to the cumulation of votes for the
election of directors. Subject to any provision for a
<PAGE> 4
-4-
liquidation account, in the event of any liquidation, dissolution, or winding
up of the savings bank, the holders of the common stock shall be entitled,
after payment or provision for payment of all debts and liabilities of the
savings bank, to receive the remaining assets of the savings bank available for
distribution, in cash or in kind. Each share of common stock shall have the
same relative rights as and be identical in all respects with all the other
shares of common stock.
Section 6. Preemptive Rights. Holders of the capital stock of the
savings bank shall not be entitled to preemptive rights with respect to any
shares of the savings bank which may be issued.
Section 7. Directors. The savings bank shall be under the direction
of a board of directors. The authorized number of directors, as stated in the
savings bank's bylaws, shall not be fewer than seven nor more than fifteen
except when a greater number is approved by the Board.
Section 8. Amendment of Charter. Except as provided in Section 5, no
amendment, addition, alteration, change, or repeal of this charter shall be
made, unless such is first proposed by the board of directors of the
<PAGE> 5
-5-
savings bank, then preliminarily approved by the Board, which preliminary
approval may be granted by the Board pursuant to regulations specifying
preapproved charter amendments, and thereafter approved by the shareholders by
a majority of the total votes eligible to be cast at a legal meeting. Any
amendment, addition, alteration, change, or repeal so acted upon shall be
effective upon filing with the Board in accordance with regulatory procedures
or on such other date as the Board may specify in its preliminary approval.
UNITED SAVINGS ASSOCIATION
OF TEXAS FSB
Attest: /s/ By: /s/
------------------------------ ---------------------------------
Secretary of the Interim President
Savings Bank
FEDERAL HOME LOAN BANK BOARD
Attest: /s/ By: /s/
------------------------------ ---------------------------------
Assistant Secretary
to the Board
December 30, 1988
<PAGE> 6
FIRST AMENDMENT
TO
FEDERAL STOCK CHARTER
UNITED SAVINGS ASSOCIATION OF TEXAS FSB
HOUSTON, TEXAS
Section 1 of the Charter is hereby amended in its entirety to read as
follows:
Section 1. Corporate Title. The full corporate name of the savings bank
is Bank United of Texas FSB.
<PAGE> 1
EXHIBIT 10.7a
CERTIFICATE OF THE DESIGNATIONS, POWERS,
PREFERENCES AND RIGHTS
OF THE
10.12% NON-CUMULATIVE PREFERRED STOCK, SERIES A
(STATED VALUE $25.00 PER SHARE)
OF
BANK UNITED OF TEXAS FSB
-------
PURSUANT TO 12 C.F.R. SECTION 552.4 - RULES AND REGULATIONS OF THE
OFFICE OF THRIFT SUPERVISION
-------
The undersigned DOES HEREBY CERTIFY that the following resolution was
duly adopted by the Board of Directors (the "Board of Directors") of Bank
United of Texas FSB, a federal stock savings bank (hereinafter the "Bank"), at a
special meeting duly convened and held on December 17, 1992, at which a quorum
was present and acting throughout:
"RESOLVED that pursuant to the authority expressly granted to and
vested in this Board of Directors by the Federal Stock Charter of the Bank (the
"Charter"), the Board of Directors hereby authorizes the creation of a series
of 10.12% Non-Cumulative Preferred Stock, Series A, stated value $25.00 per
share, of the Bank upon the terms and conditions set forth herein and hereby
fixes the designation and number of shares thereof and fixes the other powers,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations and restrictions thereof (in addition to those
set forth in the Charter which may be applicable to the 10.12% Non-Cumulative
Preferred Stock, Series A) as follows:
1. Designation and Amount; Fractional Shares. There shall be a
series of preferred stock of the Bank designated as "10.12%
Non-Cumulative Preferred Stock, Series A" and the number of shares
constituting such series shall be 3,450,000. Such series is referred to
herein as the "Series A Preferred Stock". The Series A Preferred Stock
is issuable solely in whole shares.
2. Stated Value and Issue Price. The stated value of each such
share is $25.00 and the issue price of each such share is $25.00.
3. Dividends.
(a) The holders of Series A Preferred Stock shall be entitled
to receive, when, as and if declared by the Board of Directors or, to
the extent permitted by applicable law, a duly authorized committee
thereof, out of funds at the time legally available therefor, cash
dividends at a rate of 10.12% per annum ($.6325 per quarter), and no
more, which shall be non-cumulative, and which shall be payable when, as
and if declared by the Board of Directors in cash quarterly in arrears
on the last day of March, June, September and December of each year
commencing March 31, 1993 (each, a "Dividend Payment Date") (except that
if any such date is a Saturday, Sunday or legal holiday, then such
dividend shall be payable on the next day that is not a Saturday, Sunday
or legal holiday) to holders of record as they appear upon the stock
transfer books of the Bank on such record dates, not more than sixty
days nor less than ten days preceding the payment dates for such
dividends, as are fixed by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof (each,
a "Record Date"). If the dividend otherwise payable on any Dividend
Payment Date shall not be declared and paid as aforesaid, all rights of
holders of the Series A Preferred Stock to receive such dividend shall
terminate, and such dividend shall not be accumulated or paid in any
subsequent period. For purposes hereof, the term "legal holiday" shall
mean any day on which banking institutions are authorized to close in
Houston, Texas. The Series A Preferred Stock will not participate in
dividends with the Bank's common stock (the "Common Stock").
<PAGE> 2
Holders of shares of Series A Preferred Stock called for redemption
on a redemption date between a Record Date and the corresponding Dividend
Payment Date shall not be entitled to receive the dividend payable on such
Dividend Payment Date. As used herein, (i) the term "Initial Dividend Period"
shall mean the period from and including the date of distribution to the initial
holders of the Series A Preferred Stock (the "Date of Original Issue") to and
excluding March 31, 1993, (ii) the term "Subsequent Dividend Period" shall mean
the applicable period from March 31 to and excluding the next June 30, from June
30 to and excluding the next September 30, from September 30 to and excluding
the next December 31, or from December 31 to and excluding the next March 31,
or, in each such case as to particular shares of the Series A Preferred Stock
such shorter period during which such shares of the Series A Preferred Stock are
outstanding (excluding the last day of such shorter period), and (iii) the term
"Dividend Period" shall mean the Initial Dividend Period or any Subsequent
Dividend Period, as the context requires.
(b) The amount of dividends payable on each share of the Series A
Preferred Stock for each full quarterly Dividend Period during which such share
was outstanding shall be $.6325. For the Initial Dividend Period, and for any
Subsequent Dividend Period for which the Board of Directors declares a dividend
and during which such share was not outstanding for a full quarterly Dividend
Period, the amount of dividends payable on each such share of the Series A
Preferred Stock shall be computed by multiplying $2.53 by a fraction, the
numerator of which shall be the number of days (but in no event more than 90
days with respect to any one calendar quarter) in such Dividend Period that
such share was outstanding (excluding the last such day) and the denominator of
which shall be 360. Dividends on each share of the Series A Preferred Stock
will be non-cumulative. Holders of shares of the Series A Preferred Stock shall
not be entitled to any interest, or sum of money in lieu of interest, in
respect of any dividend payment or payments on shares of the Series A Preferred
Stock declared by the Board of Directors which may be in arrears. Any dividend
payment made on shares of the Series A Preferred Stock shall first be credited
against the earliest declared but unpaid dividend with respect to shares of the
Series A Preferred Stock.
(c) No dividends or other distributions, other than dividends
payable solely in shares of the Bank's Common Stock or other capital stock of
the Bank ranking junior as to dividends and as to liquidation rights to the
Series A Preferred Stock shall be declared, paid or set apart for payment on
any shares of Common Stock or other capital stock of the Bank, when and if
issued, ranking junior as to dividends to the Series A Preferred Stock
(collectively with the Common Stock, the "Junior Dividend Stock"), unless and
until full dividends for each of the four most recent Dividend Periods (or for
all Dividend Periods, if less than four Dividend Payment Dates have accrued
from the Date of Original Issue) on the Series A Preferred Stock have been paid
in full or declared and set apart for payment prior to the date of payment of
such dividends or other distributions on Junior Dividend Stock shall have been
paid or declared and set apart for payment. If at any time any dividends on the
Series A Preferred Stock shall not have been paid or declared and set apart for
payment, the Bank shall not (except by conversion into or exchange for Junior
Dividend Stock) repurchase, redeem or otherwise acquire (including by payment
to or made available for a sinking fund for the redemption of) any shares of
Common Stock, Junior Dividend Stock or any other class or series of the Bank's
capital stock hereafter issued ranking junior as to dividends and rights upon
liquidation, dissolution or winding up of the Bank to the Series A Preferred
Stock (the "Junior Liquidating Stock"), unless and until full dividends for
each of the four most recent Dividend Periods (or for all Dividend Periods, if
less than four Dividend Payment Dates have accrued from the Date of Original
Issue) on the Series A Preferred Stock have been paid in full or declared and
set apart for payment prior to the date of such repurchase, redemption or other
acquisition of such capital stock.
(d) No full dividends shall be paid or declared and set apart for
payment on any class or series of the Corporation's capital stock hereafter
issued ranking, as to dividends, on a parity with the Series A Preferred Stock
(the "Parity Dividend Stock") for any period unless full dividends have been,
or contemporaneously are, paid or declared and set apart for such payment on
the Series A Preferred Stock for the Dividend Periods terminating on or prior
to the date of payment of such full dividends. No full dividends shall be paid
or declared and set apart for payment on the Series A Preferred Stock for
any Dividend Period unless full dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Parity Dividend Stock for the
dividend periods terminating on or prior to the date of payment of such full
dividends. When accrued dividends are not paid in full on the Series A
Preferred Stock and the Parity Dividend Stock, all dividends paid or declared
and set apart
<PAGE> 3
for payment on the Series A Preferred Stock and the Parity Dividend Stock shall
be paid or declared and set apart for payment pro rata so that the amount of
dividends paid or declared and set apart for payment per share on the Series A
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends per share on the Series
A Preferred Stock and the Parity Dividend Stock bear to each other.
(e) Any reference to "distribution" contained in this Section 3
shall not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Bank, whether voluntary or
involuntary.
4. Liquidation Preference. In the event of a liquidation,
dissolution or winding up of the Bank, whether voluntary or involuntary, each
holder of a share of Series A Preferred Stock shall be entitled to receive out
of the net assets of the Bank available for distribution to its stockholders,
an amount equal to $25.00 per share, plus an amount equal to the dividend
accrued and unpaid from the Dividend Payment Date next preceding the date of
such payment in liquidation, without interest, and no more, before any payment
shall be made or any assets distributed to the holders of Common stock or any
other a Junior Liquidation Stock; provided, however, that such rights shall
accrue to the holders of Series A Preferred Stock only in the event that the
Bank's payments with respect to the shares of capital stock of the Bank
hereafter issued ranking senior as to rights upon liquidation, dissolution or
winding up to the Series A Preferred Stock (the "Senior Liquidation Stock") are
fully met. The entire net assets of the Bank available for distribution after
the preferences of the Senior Liquidation Stock upon liquidation, dissolution or
winding up are fully met shall be distributed ratably among the holders of the
Series A Preferred Stock and any other class or series of the Bank's capital
stock hereafter issued having parity as to rights upon liquidation, dissolution
or winding up with the Series A Preferred Stock in proportion to the respective
preferential amounts to which each is entitled (but only to the extent of such
preferential amounts). After payment in full of the preferences of the shares
of the Series A Preferred Stock upon liquidation, dissolution or winding up,
the holders of such shares in their capacity as such shall not be entitled to
any further participation in any distribution of assets by the Bank. Neither a
change of control of the Bank, nor a consolidation or merger of the Bank with
or into another corporation nor a merger of any other corporation with or into
the Bank, nor a sale or transfer of all or any part of the Bank's assets for
cash, securities or other property will be considered a liquidation,
dissolution or winding up of the Bank.
5. Redemption at Option of the Bank.
(a) The Series A Preferred Stock may not be redeemed by the Bank
prior to December 31, 1997. On or after December 31, 1997, the Series A
Preferred Stock may be redeemed by the Bank, at its option on any date set by
the Board of Directors (or, to the extent permitted by applicable law, a duly
authorized committee thereof), in whole or in part, out of funds legally
available therefor, at any time or from time to time, at the following
redemption prices per share (expressed as a percentage of the $25.00
liquidation preference thereof (exclusive of accrued dividends)), if redeemed
during the 12-month period beginning December 31 of the year indicated:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
1997 105%
1998 104%
1999 103%
2000 102%
2001 101%
</TABLE>
and thereafter at $25.00 per share, plus, in each case, an amount in cash equal
to accrued and unpaid dividends thereon, if any, from the Dividend Payment Date
next preceding the date fixed for redemption, to but excluding the date fixed
for redemption (a "Redemption Date") to but excluding the Redemption Date, such
sum being hereinafter referred to as the "Redemption Price."
-3-
<PAGE> 4
On and after the Redemption Date, provided that the Redemption Price (including
any accrued and unpaid dividends to the Redemption Date), has been duly paid or
provided for, dividends shall cease to accrue on the Series A Preferred Stock
called for redemption, such shares shall no longer be deemed to be outstanding,
and all rights of the holders of such shares as stockholders of the Bank shall
cease, except the right to receive the monies payable upon such redemption,
without interest thereon, upon surrender of the certificates evidencing such
shares.
(b) The Series A Preferred Stock may be redeemed at any time, at the
option of the Bank, in whole but not in part, at a redemption price equal to
105% of the liquidation preference (exclusive of accrued dividends) ($25.00 per
share), plus accrued and unpaid dividends thereon from the Dividend Payment
Date next preceding the date fixed for redemption if one of the following
events (a "Significant Transaction") occurs:
(i) the Bank merges or consolidates with or into another
entity, or another entity merges or consolidates with or into the Bank,
and the entity resulting from such consolidation or merger is not an
affiliate of Hyperion Partners L.P., a Delaware limited partnership
("Hyperion");
(ii) any person other than Hyperion or an affiliate of Hyperion
acquires beneficial ownership of a majority of the Common Stock; or
(iii) the Bank sells or otherwise disposes of all or
substantially all of its assets to any person other than Hyperion or an
affiliate of Hyperion.
Notice of redemption as a result of a Significant Transaction may be
given at any time after a definitive agreement for such a transaction has been
entered into, or after any such event has occurred, and prior to the date which
is 60 days following the date such transaction is consummated, and such
redemption may be consummated notwithstanding any subsequent abandonment or
modification of such transaction. The Series A Preferred Stock shall be subject
to redemption pursuant to this subparagraph (b) only in connection with the
first Significant Transaction to occur after the creation of the Series A
Preferred Stock.
(c) In case of the redemption of less than all of the then outstanding
shares of Series A Preferred Stock, the Bank shall designate by lot, or in such
other manner as the Board of Directors (or, to the extent permitted by
applicable law, a duly authorized committee thereof) may determine, the shares
to be redeemed, or shall effect such redemption pro rata.
(d) Not more than sixty nor less than thirty days prior to the
Redemption Date fixed by the Board of Directors, notice by first class mail,
postage prepaid, shall be given to the holders of record of shares of the
Series A Preferred Stock to be redeemed, addressed to such holders at their last
addresses as shown upon the stock transfer books of the Bank. Each such notice
of redemption shall specify the date fixed for redemption, the number of shares
of Series A Preferred Stock to be redeemed, and if less than all the shares
held by such holder are to be redeemed, the number of such shares to be
redeemed from such holder, the Redemption Price, the place or places of payment,
that payment will be made upon presentation and surrender of the certificates
representing shares of Series A Preferred Stock, and that on and after the
Redemption Date dividends will cease to accrue on such shares.
(e) Any notice that is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of shares of Series
A Preferred Stock receives such notice; and failure to give such notice by mail,
or any defect in such notice to the holders of any shares designated for
redemption shall not affect the validity of the proceedings for the redemption
of any other shares of Series A Preferred Stock. On or after the date fixed for
redemption as stated in such notice, each holder of the shares called for
redemption shall surrender the certificate evidencing such shares to the Bank at
the place designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price for each such share. If less than all the shares
evidenced by any such surrender certificate are redeemed, a new certificate
shall be issued evidencing the unredeemed shares. Notice having been given as
aforesaid, if, on the date fixed for redemption, funds necessary for the
redemption shall be
-4-
<PAGE> 5
available therefor and shall have been irrevocably deposited or set aside, then,
notwithstanding that the certificates evidencing any shares so called for
redemption shall not have been surrendered, dividends with respect to the shares
so called shall cease to accrue as of 5:00 p.m. (Houston time) on the day before
the date fixed for redemption, such shares shall no longer by deemed
outstanding, the holders thereof shall cease to be stockholders of the Bank and
all rights whatsoever with respect to the shares so called for redemption
(except the right of the holders to receive the Redemption Price for each share
without interest upon surrender of their certificates therefor) shall terminate.
If funds legally available for such purpose are not sufficient for redemption of
the shares of Series A Preferred Stock which were to be redeemed, then the
certificates evidencing such shares shall not be deemed to be surrendered, such
shares shall remain outstanding and the right of holders of shares of Series A
Preferred Stock thereafter shall continue to be only those of a holder of shares
of the Series A Preferred Stock.
(f) The shares of Series A Preferred Stock shall not be subject to the
operation of any mandatory purchase, retirement or sinking fund.
6. Voting Rights
(a) The holders of Series A Preferred Stock will not have any voting
rights except as set forth below or as otherwise from time to time required by
law. In connection with any right to vote, each holder of Series A Preferred
Stock will have one vote for each such share held, and will not be entitled to
cumulative voting in any election of directors. Any shares of Series A
Preferred Stock held by the Bank or any entity controlled by the Bank shall not
have voting rights hereunder and shall not be counted in determining the
presence of a quorum.
(b) Whenever dividends on the Series A Preferred Stock have not been
paid for the equivalent of at least six Dividend Periods (which, prior to the
occurrence of a Significant Transaction, are during any period during which,
since the date of the first Dividend Payment Date on which dividends were not
paid in full which is to be included for purposes of determining whether
dividends have not been paid for the equivalent of six Dividend Periods, there
has not been the payment of full dividends on the Series A Preferred Stock for
four consecutive Dividend Periods, (i) the number of members of the Board of
Directors shall be increased by two, effective as of the time of election of
such directors as hereinafter provided, and (ii) the holders of the Series A
Preferred Stock (voting separately as a class with all other affected classes
or series of the Parity Dividend Stock upon which like voting rights have been
conferred and are exercisable) will have the exclusive right to vote for and
elect such two additional directors of the Bank at any meeting of stockholders
of the Bank at which directors are to be elected held during the period such
dividends remain in arrears. The right of the holders of the Series A Preferred
Stock to vote for such two additional directors shall terminate when dividends
on the Series A Preferred Stock have been declared and paid or set apart for
payment for four consecutive Dividend Periods, provided that, once a
Significant Transaction has occurred, in the event that such right to elect two
additional directors terminates at any time upon the payment or the declaration
and setting aside for payment of dividends for four consecutive Dividend
Periods, the holders of the Preferred Stock shall have the right to vote for
two additional directors beginning as of the next Dividend Payment Date after
such termination on which dividends have not been declared and paid or set
aside for payment. The term of any director elected by the holders of the
Series A Preferred Stock (and any Parity Dividend Stock) shall terminate upon
the payment or the declaration and setting aside for payment of full dividends
on the Preferred Stock for four consecutive Dividend Periods.
The foregoing right of the Holders of the Series A Preferred Stock with
respect to the election of two directors may be exercised at any annual meeting
of stockholders or at any special meeting of stockholders held for such
purpose. If the right to elect directors shall have accrued to the holders of
the Series A Preferred Stock more than ninety days preceding the date
established for the next annual meeting of stockholders, the President of the
Bank shall, within twenty days after the delivery to the Bank at its principal
office of a written request for a special meeting signed by the holders of at
least 10% of all outstanding shares of the Series A Preferred Stock, call a
special meeting of the holders of the Series A Preferred Stock to be held
within sixty days after the delivery of such request for the purpose of
electing such additional directors.
-5-
<PAGE> 6
The holders of the Series A Preferred Stock and any Parity
Dividend Stock referred to above voting as a class shall have the right to
remove without cause at any time and replace any directors such holders
shall have elected pursuant to this Section 6.
(c) So long as the Series A Preferred Stock is outstanding, the
Bank shall not, without the affirmative vote or consent of the holders of
at least 66-2/3% of all outstanding shares of the Series A Preferred Stock
voting separately as a class, (i) amend, alter or repeal any provision of
the Charter of the Bank (including any such amendment, alteration, or
repeal resulting from a merger or consolidation of the Bank), so as to
affect adversely the relative rights, preferences, qualifications,
limitations or restrictions of the Series A Preferred Stock, or (ii)
create, authorize or issue, or reclassify any authorized stock of the Bank
that is senior or superior as to dividends or liquidation to the Series A
Preferred Stock, or any security convertible into such senior security. A
class vote on the part of the Series A Preferred Stock shall, without
limitation, specifically not be deemed to be required (except as otherwise
required by law or resolution of the Board of Directors) in connection
with: (a) the authorization, issuance of increase in the authorized amount
of any shares of any other class or series of stock which ranks junior to,
or on a parity with, the Series A Preferred Stock in respect of the payment
of dividends and distributions upon liquidation, dissolution or winding up
of the Bank; or (b) the authorization, issuance or increase in the amount
of any notes, commercial paper, bonds, mortgages, debentures or other
obligations of the Bank.
No vote of the Series A Preferred Stock shall be required if the
Series A Preferred Stock is to be redeemed in whole on a Redemption Date
occurring on or prior to the date of occurrence of any event otherwise
requiring a class vote by the Series A Preferred Stock.
(d) A majority of the shares of Series A Preferred Stock
outstanding and entitled to vote on any matter shall constitute a quorum.
7. Ranking. Any class or classes of stock of the Bank shall be deemed
to rank:
(i) prior to the Series A Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class shall be
entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders os Series A Preferred Stock,
(ii) on a parity with the Series A Preferred Stock, as
to dividends or as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
are different from those of the Series A Preferred Stock, if the
holders of such class of stock and the Series A Preferred Stock shall
be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
proportion to their respective amounts of accrued and unpaid dividends
per share or liquidation prices, without preference or priority one
over the other, and
(iii) junior to the Series A Preferred Stock, as to
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock shall be Common Stock or if
the holders of Series A Preferred Stock shall be entitled to receipt
of dividends or of amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in preference or priority to the
holders of shares of such stock.
8. Status of Acquired Shares. Shares of Series A Preferred Stock
redeemed by the Bank, or otherwise acquired by the Bank, will be restored to
the status of authorized but unissued shares of the Bank's preferred stock,
without designation as to class, and may thereafter be issued, but not as shares
of Series A Preferred Stock.
-6-
<PAGE> 7
9. Conversion and Preemptive Rights. The Series A Preferred Stock
is not entitled to any conversion, preemptive or subscription rights in respect
of any securities of the Bank.
10. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change
as shall be necessary to render the provision in question effective and valid
under applicable law."
IN WITNESS WHEREOF, the Bank has caused this Certificate to be made
under the seal of the Bank and signed by Barry C. Burkholder, its President,
and attested by Randolph C. Henson, its Secretary, this 18th day of December,
1992.
BANK UNITED OF TEXAS FSB
By: /s/ Barry C. Burkholder
--------------------------------
Name: Barry C. Burkholder
Title: President
Attest: [SEAL]
/s/ Randolph C. Henson
- ----------------------------------
Title: Secretary
-7-
