AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 1997
REGISTRATION NO. 333-19237
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BANK UNITED CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 6711 13-3528556
(STATE OF INCORPORATION) (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
3200 SOUTHWEST FREEWAY
SUITE 1600
HOUSTON, TX 77027
(713) 543-6500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JONATHON K. HEFFRON, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
3200 SOUTHWEST FREEWAY
HOUSTON, TX 77027
(713) 543-6958
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
CRAIG M. WASSERMAN, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ
51 WEST 52ND STREET
NEW YORK, NY 10019
(212) 403-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such
time or times after the Registration Statement becomes effective as the Selling
Stockholders may determine.
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: [ ]
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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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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.
PAYABLE
BY THE
REGISTRANT
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SEC registration fee................. $ --
NASD filing fee...................... --
NASDAQ listing fee................... --
Blue Sky fees and expenses........... --
Accounting fees and expenses......... 15,000
Legal fees and expenses.............. --
Printing and engraving expenses...... 45,000
Miscellaneous fees and expenses...... --
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Total........................... $ 60,000
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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
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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 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 (1) any breach of the
director's duty of loyalty to the corporation or its stockholders, (2) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (3) payments of unlawful dividends or unlawful stock
repurchases or redemptions, or (4) 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 (1) for any breach of the director's
duty of loyalty to the Company or its stockholders, (2) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the DGCL, which concerns unlawful payments of
dividends, stock purchases or redemptions, or (4) 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
During June 1996, the following actions were taken in the order indicated:
(1) Hyperion Holdings exchanged shares of a newly created class of its
non-voting common stock for certain shares of its voting common stock held by
Hyperion Partners; (2) Hyperion Partners then distributed the Hyperion Holdings
common stock to its limited and general partners in accordance with the limited
partnership agreement of Hyperion Partners (the "Distribution"); and (3)
following the Distribution, Hyperion Holdings was merged with and into the
Company (the "Merger"), with the result that holders of Hyperion Holdings
voting and non-voting common stock received shares of Class A Common Stock and
Class B Common Stock and the holders of the Company's Class C common stock, par
value $0.01 per share ("Class C Common Stock") received shares of Class B
Common Stock as set forth under "Selling Stockholders". As part of the
Restructuring, the common stock of Hyperion Holdings and the Class C Common
Stock were converted 1,800 to one. Subsequent to the Restructuring, there were
no shares of Class C Common Stock outstanding. In addition, immediately prior to
the August Offering, the FDIC-FRF surrendered to the Bank a portion of the
Warrant to purchase 158,823 shares of Bank Common Stock for a cash payment of
$6.1 million and exercised the remainder of the Warrant. Immediately thereafter,
the FDIC-FRF exchanged the shares of Bank Common Stock for 1,503,560 shares of
Class B Common Stock, all of which are being sold in the August Offering. See
"Business -- The Assistance Agreement" and "Selling Stockholders". In June
1996, the Company granted 318,342 shares of Class B Common Stock to certain
executive officers of the Company pursuant to the executive management
compensation program. See "Management -- Executive Management Compensation
Program".
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits. The following exhibits are filed as part of this
Registration Statement.
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EXHIBIT NO. DESCRIPTION
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1.1* -- Form of Sales Agency 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 consumated
prior to the Offering. (Exhibit 2.1 to Form S-1 filed on June 18, 1996)
2.2 -- Merger Agreement, dated as of June 17, 1996, by and between the Company and Hyperion
Holdings related to the Merger. (Exhibit 2.2 to Form S-1 filed on August 7, 1996)
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as amended. (Exhibit 3.1
to Form S-1 filed on June 18, 1996)
3.2 -- Form of By-Laws of the Registrant. (Exhibit 3.2 to Form S-1 filed on June 18, 1996)
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. (Exhibit 4.1 to
Form S-1 filed on June 18, 1996)
4.2 -- Form of 8.05% Senior Note due May 15, 1998 (included in the Indenture filed as Exhibit 4.1
hereto). (Exhibit 4.2 to Form S-1 filed on June 18, 1996)
4.3 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Exhibit 4.3 to Form S-1 filed on June 18, 1996)
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. (Exhibit 4.4 to Form S-1 filed on June 18, 1996)
4.5 -- Form of Class A common stock Certificate. (Exhibit 4.5 to Form S-1 filed on July 25, 1996)
4.6 -- Indenture, dated as of May 7, 1997, between the Registrant and The Bank of New York, as
Trustee, relating to the Registrant's 8.875% Subordinated Notes due May 1, 2007 (Exhibit
4.2 to Form S-1 filed on April 24, 1997)
4.7 -- Form of 8.875% Subordinated Notes due May 1, 2007 (included in the Indenture filed as
Exhibit 4.2 hereto) (Exhibit 4.3 to Form S-1 on April 24, 1997)
4.8 -- Form of 8.05% Senior Note due May 15, 1998 (included in Indenture filed as Exhibit 4.1
hereto) (Exhibit 4.4 to Form S-1 filed on April 24, 1997)
4.9 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.3 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
4.10 -- 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. (Incorporated by reference to Exhibit 4.4 in the Registrant's Registration Statement
on Form S-1, Registration No. 333-06229.)
4.11 -- Second Supplemental Indenture, dated as of December 3, 1996 among Registrant, BNKU
Holdings, Inc. and The Bank of New York, as Trustee, relating to Registrant's 8.05% Senior
Notes due May 15, 1998 (Exhibit 4.7 to Form S-1 filed on April 24, 1997)
4.12 -- Third Supplemental Indenture, dated as of March 27, 1997 between the Registrant and The
Bank of New York, as Trustee, relating to the Registrant's 8.05% Senior Notes due May 15,
1998 (Exhibit 4.8 to Form S-1 filed on April 24, 1997)
5 -- Opinion of Wachtell, Lipton, Rosen & Katz as to the validity of the shares of Class A
Common Stock. (Exhibit 5 to Form S-1 filed on January 27, 1997)
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners, and the FSLIC. (Exhibit 10.1 to Form S-1 filed on June 18,
1996)
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC. (Exhibit 10.1a to Form S-1
filed on June 18, 1996)
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners and the FDIC. (Exhibit 10.1b to Form S-1 filed on June 18,
1996)
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and the FSLIC.(Exhibit
10.2 to Form S-1 filed on June 18, 1996)
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10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the FSLIC. (Exhibit 10.3
to Form S-1 filed on June 18, 1996)
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993, between the Bank and the
FDIC. (Exhibit 10.3a to Form S-1 filed on June 18, 1996)
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988 among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC (terminated). (Exhibit
10.4 to Form S-1 filed on June 18, 1996)
10.5 -- Federal Stock Charter of the Bank and First Amendment to charter approved on August 26,
1992. (Exhibit 10.5 to Form S-1 filed on June 18, 1996)
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second Amendment approved on
October 30, 1992. (Exhibit 10.6 to Form S-1 filed on June 18, 1996)
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on April 23, 1996.
(Exhibit 10.6a to Form S-1 filed on June 18, 1996)
10.6b -- Amended and Restated Bylaws of the Bank. (Exhibit 10.6b to Form S-1 filed on June 18,
1996)
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share stated value of the
Bank. (Exhibit 10.7 to Form S-1 filed on June 18, 1996)
10.7a -- Certificate of Designation of Noncumulative Preferred Stock, Series A, of the Bank.
(Exhibit 10.7a to Form S-1 filed on June 18, 1996)
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share stated value, of the
Bank. (Exhibit 10.7b to Form S-1 filed on June 18, 1996)
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B, of the Bank.
(Exhibit 10.7c to Form S-1 filed on June 18, 1996)
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). (Exhibit 10.8 to Form S-1 filed on June 18, 1996)
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. (Exhibit 10.8a to Form
S-1 filed on June 18, 1996)
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. (Exhibit 10.8b to Form S-1
filed on June 18, 1996)
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. (Exhibit 10.8c to Form S-1
filed on June 18, 1996)
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. (Exhibit 10.8d to Form
S-1 filed on June 18, 1996)
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). (Exhibit 10.9 to Form S-1 filed on June 18,
1996)
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.
(Exhibit 10.10 to Form S-1 filed on June 18, 1996)
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.). (Exhibit
10.10a to Form S-1 filed on June 18, 1996)
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.). (Exhibit
10.10b to Form S-1 filed on June 18, 1996)
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and Greenway Plaza, LTD.
(Leased premises at 3800 Buffalo Speedway). (Exhibit 10.11 to Form S-1 filed on June 18,
1996)
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry C. Burkholder.
(Exhibit 10.12 to Form S-1 filed on June 18, 1996)
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10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between the Bank and Barry C.
Burkholder. (Exhibit 10.12a to Form S-1 filed on June 18, 1996)
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between the Bank and Anthony
J. Nocella. (Exhibit 10.13 to Form S-1 filed on June 18, 1996)
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between the Bank and George R.
Bender. (Exhibit 10.14 to Form S-1 filed on June 18, 1996)
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between the Bank and Jonathon
K. Heffron. (Exhibit 10.15 to Form S-1 filed on June 18, 1996)
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between the Bank and Leslie H.
Green. (Exhibit 10.16 to Form S-1 filed on June 18, 1996)
10.17 -- Management Incentive Plan, dated April 20, 1992. (Exhibit 10.17 to Form S-1 filed on June
18, 1996)
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. (Exhibit 10.18 to Form S-1 filed on June 18, 1996)
10.22 -- Supplemental Executive Savings Plan of the Bank. (Exhibit 10.22 to Form S-1 filed on June
18, 1996)
10.23 -- Directors Supplemental Savings Plan of the Bank. (Exhibit 10.23 to Form S-1 filed on June
18, 1996)
10.24 -- Warrant Purchase and Exchange Agreement, dated July 23, 1996, by and among the Company,
the Bank and the Federal Deposit Insurance Corporation. (Exhibit 10.24 to Form S-1 filed
on July 25, 1996)
10.25 -- Tax Sharing Agreement dated as of May 1, 1996, by and between the Company and the Bank.
10.26 -- Form of The Company's 1996 Stock Incentive Plan. (Exhibit 10.26 to Form S-1 filed on July
25, 1996)
10.27 -- Form of The Company's Director Stock Plan. (Exhibit 10.27 to Form S-1 filed on July 25,
1996)
10.28 -- Employment Agreement, dated August 1, 1996, between the Company and Barry C. Burkholder.
10.29 -- Employment Agreement, dated August 1, 1996, between the Company and Anthony J. Nocella.
10.30 -- Employment Agreement, dated August 1, 1996, between the Company and Jonathon K. Heffron.
10.31 -- Employment Agreement, dated August 1, 1996, between the Company and Ronald D. Coben.
10.32 -- Form of Nontransferable Stock Agreement. (Exhibit 10.32 to Form S-1 filed on July 25,
1996)
10.33 -- Form of Stock Option Agreement. (Exhibit 10.33 to Form S-1 filed on July 25, 1996)
10.34 -- Consulting Agreement. (Exhibit 10.23 to Form 10-K filed on December 20, 1996)
10.35 -- Recovery Agreement. (Exhibit 10.24 to Form 10-K filed on December 20, 1996)
10.36 -- Stock Purchase Agreement, dated January 15, 1993, between Hyperion Partners and Hyperion
Holdings. (Exhibit 10.36 to Form S-1 filed on July 25, 1996)
10.37 -- Asset Purchase and Sale Agreement, dated January 17, 1997, between the Bank and National
City Mortgage Co. (Exhibit 10.38 to Form 10-Q filed on February 14, 1997)
21 -- Subsidiaries of the Registrant. (Exhibit 21 to Form S-1 filed on August 7, 1996)
*23.1 -- Consent of Deloitte & Touche LLP, independent auditors.
27 -- Financial Data Schedule.
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* Filed herewith.
All other Exhibits have been filed previously.
(b) Financial Statement Schedules.
Schedules to the Consolidated Financial Statements are not required under
the related instructions or are inapplicable, and therefore have been omitted.
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ITEM 17. 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, as amended (the "Securities Act");
(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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this 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, 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.
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.
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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 HOUSTON, TEXAS, ON AUGUST 11, 1997.
BANK UNITED CORP.
By: /s/BARRY C. BURKHOLDER
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.
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SIGNATURES TITLE DATE
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(1) Principal Executive Officer:
/s/BARRY C. BURKHOLDER President and August 11, 1997
BARRY C. BURKHOLDER Chief Executive Officer
(2) Principal Financial and Accounting Officer:
/s/ANTHONY J. NOCELLA Vice Chairman and August 11, 1997
ANTHONY J. NOCELLA Chief Financial Officer
(3) Directors:
* Chairman and Director August 11, 1997
LEWIS S. RANIERI
Director August 11, 1997
BARRY C. BURKHOLDER
* Director August 11, 1997
LAWRENCE CHIMERINE, PH.D.
* Director August 11, 1997
DAVID M. GOLUSH
* Director August 11, 1997
PAUL M. HORVITZ, PH.D.
* Director August 11, 1997
ALAN E. MASTER
* Director August 11, 1997
ANTHONY J. NOCELLA
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SIGNATURES TITLE DATE
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* Director August 11, 1997
SALVATORE A. RANIERI
* Director August 11, 1997
SCOTT A. SHAY
* Director August 11, 1997
PATRICIA A. SLOAN
* Director August 11, 1997
MICHAEL S. STEVENS
* Director August 11, 1997
KENDRICK R. WILSON III
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* Signed through a Power of Attorney granted to
Barry C. Burkholder and Jonathan K. Heffron.
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EXHIBIT 1.1
FORM OF SALES AGENCY AGREEMENT
August , 1997
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
In connection with the agreement of Lehman Brothers Inc. ("Lehman") to
act as broker in connection with the sale of up to shares (the
"Shares") of Class A Common Stock of Bank United Corp. (the "Company") owned
by the undersigned participating selling stockholders named below (the "Selling
Stockholders") in transactions in the over-the-counter market at prices
relating to market prices for the common stock prevailing at the time of sale:
1. The Company represents and warrants that a registration statement on Form S-1
(Registration No. 333-19237) with respect to the offer and sale of the Shares
has been prepared by the Company in conformity with the requirements of the
U.S. Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), has been filed with the
Securities and Exchange Commission (the "SEC") thereunder and has been
declared effective under the Securities Act. As used herein, "Registration
Statement" means such registration statement, as amended, including any
documents incorporated by reference therein and exhibits thereto, and
including all information contained in the prospectus dated May 14, 1997 and
any Prospectus Supplement (collectively, the "Prospectus") filed with the
SEC and deemed to be a part thereof. No order suspending the effectiveness of
the Registration Statement or otherwise preventing or suspending the use of
the Prospectus has been issued by the SEC and no proceedings for that purpose
are pending before or, to our knowledge, threatened by, the SEC.
2. The Company represents and warrants that the Registration Statement and the
Prospectus conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective or
are filed with the SEC, as the case may be, conform in all material respects
to the requirements of the Securities Act and do not and will not, as of the
applicable date of any sale of any of the Shares, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
3. Each Selling Stockholder represents and warrants (as to the Shares owned by
such Selling Stockholder only) that such Selling Stockholder now has, and on
the settlement date of any sale of the Shares will have, good and marketable
title to such Shares, free and clear of any and all liens, encumbrances,
restrictions, preemptive rights and any other claims of any third party, with
full right and authority to sell and deliver such Shares. Upon delivery of
and payment for such Shares, the purchaser will receive good and marketable
title to such Shares purchased from such Selling Shareholder, free and clear
of any and all liens, encumbrances, restrictions, preemptive rights and other
claims of any third party.
4. If during the period when Lehman may be acting as broker in connection with
the sale of the Shares any event relating to or affecting the Company shall
occur which should be set forth in a supplement to or as amendment of the
Prospectus to correct a material misstatement or omission therein or in order
to make the Prospectus not misleading when it is delivered, or if for any
other reason it shall be necessary during such period to amend or supplement
the Prospectus or to file under the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder (the "Exchange Act") any
document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, the Company will immediately (i)
notify Lehman to suspend all sales of the Shares and (ii) prior to any
further sales of the Shares, cause the preparation and filing with the SEC of
a supplement or supplements or an amendment or amendments to the Prospectus
which will supplement or amend the Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered, not misleading or which will affect any other necessary
compliance.
5. By participating as a broker in connection with the sale of the Shares,
Lehman may be deemed to be an underwriter with respect to the sale of the
Shares. As a material inducement for Lehman to participate as an
<PAGE>
agent in the sale of the Shares, the Company hereby agrees to indemnify
Lehman with respect to losses, claims, damages, liabilities, costs and
expenses (including the reasonable fees and expenses of counsel incurred in
connection with defending any such claims) arising out of or based upon (i)
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement
thereto or (ii) any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading. Lehman agrees to
indemnify the Company on the same basis as the Company is indemnifying
Lehman, but only to the extent that any such loss, claim, damage, liability,
or action arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
conformity with the information set forth under the captions "Plan of
Distribution" and "Derivative Transactions" of the Prospectus Supplement
furnished to the Company by Lehman specifically for inclusion in such
Registration Statement or Prospectus. Procedural aspects with respect to the
indemnification provided for in this paragraph 5 shall be governed by section
10(d) of the U.S. Underwriting Agreement dated February 5, 1997 between the
Company and Lehman, as representative of the several U.S. Underwriters party
thereto;
Lehman shall be entitled to rely on the above representations, warranties,
covenants and indemnities in acting as broker in connection with the sale of the
Shares, and such representations, warranties, covenants and indemnities shll
remain operative and in full force and effect regardless of any investigation
made by or on behalf of Lehman and shall survive the sale the the Shares. Lehman
shall act as broker hereunder and in no event shall be obligated to purchase the
Shares for its own account or the accounts of its customers. For its efforts,
Lehman shall be entitled to receive a commission from the Selling Stockholders
of $ per share (an aggregate of $ if all shares are sold).
This agreement may be signed in various counterparts, which together shall
constitute one and the same agreement.
Sincerely yours,
BANK UNITED CORP.
By:_________________
Name:
Title:
SELLING STOCKHOLDERS
By:_________________
By:_________________
By:_________________
By:_________________
By:_________________
By:_________________
Acknowledged:
LEHMAN BROTHERS INC.
By:_________________
Name:
Title:
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Post-Effective Amendment No. 4 Registration
Statement No. 333-19237 of Bank United Corp. on Form S-1 of our report dated
October 28, 1996, appearing in the Prospectus, which is part of this
Registration Statement.
We also consent to the reference to us under the headings "Selected
Consolidated Financial and Other Data" and "Experts" in such Prospectus.
DELOITTE & TOUCHE LLP
Houston, Texas
August 11, 1997
