<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1998
REGISTRATION NO. 333-37645
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
ON
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
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)
------------------------
JONATHON K. HEFFRON, ESQ.
EXECUTIVE VICE PRESIDENT, CHIEF OPERATING OFFICER, AND GENERAL COUNSEL
3200 SOUTHWEST FREEWAY
HOUSTON, TX 77027
(713) 543-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
JOHN R. BRANTLEY
BRACEWELL & PATTERSON, L.L.P.
2900 SOUTH TOWER PENNZOIL PLACE
HOUSTON, TX 77002
(713) 221-1301
------------------------
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 the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
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(c)
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.
================================================================================
<PAGE>
PROSPECTUS DATED FEBRUARY 10, 1998
PROSPECTUS
140,171 SHARES
BANK
UNITED CORP.
CLASS A COMMON STOCK
The 140,171 shares of Class A common stock, par value $0.01 per share
("Class A Common Stock"), of Bank United Corp. (the "Company") covered
hereby (the "Shares") may be offered (the "Offering") and sold from time to
time by the holder named in this Prospectus or by its transferees, pledgees,
donees or successors (the "Selling Stockholder") pursuant to this Prospectus
as appropriately amended or supplemented. The Selling Stockholder is a general
partner of Hyperion Partners L.P., a Delaware limited partnership ("Hyperion
Partners"). See "Selling Stockholders". The Company will not receive any of
the proceeds from the sale of the Shares by the Selling Stockholder. The Company
has agreed to bear certain registration and similar expenses in connection with
the Offering and the Selling Stockholder will bear all other expenses of the
Offering, including brokerage fees and any underwriting discounts or
commissions.
The Shares may be offered or sold by the Selling Stockholder from time to
time directly to purchasers or through agents, underwriters or dealers on terms
to be determined at the time of sale. See "Plan of Distribution". If required,
the names of any such agents or underwriters involved in the sale of the Shares
in respect of which this Prospectus is being delivered and the applicable
agent's commission, dealer's purchase price or underwriter's discount, if any,
will be set forth in an accompanying supplement to this Prospectus.
The Company has two classes of common stock outstanding: Class A Common
Stock and Class B Common Stock, par value $0.01 per share ("Class B Common
Stock"). The Class A Common Stock and the Class B Common Stock (together, the
"Common Stock") have identical dividend and other rights, except that the
Class B Common Stock is non-voting and is convertible into Class A Common Stock
upon sale or transfer to unaffiliated parties or, subject to certain
limitations, at the election of the holder thereof. The Shares to be offered by
the Selling Stockholder pursuant to this Prospectus will consist solely of
shares of Class A Common Stock.
The Selling Stockholder and any broker-dealers, agents or underwriters
which participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and any commission received by them or any profit
received by them on the resale of Shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. See "Plan of
Distribution".
The Class A Common Stock is traded on the Nasdaq Stock Market's National
Market (the "NASDAQ") under the symbol "BNKU". On February 3, 1998, the last
reported sale price of the Class A Common Stock on the NASDAQ was $41 per share.
Prospective purchasers of the Class A Common Stock are urged to obtain current
information as to market prices of the Class A Common Stock.
SEE "RISK FACTORS" BEGINNING ON PAGE 11 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS IN THE CLASS A COMMON
STOCK OFFERED HEREBY.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION"), THE FEDERAL DEPOSIT INSURANCE
CORPORATION ("FDIC"), THE OFFICE OF THRIFT SUPERVISION (THE "OTS")
OR ANY STATE SECURITIES COMMISSION, NOR HAS THE COMMISSION, THE FDIC,
THE OTS OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE SHARES OF CLASS A COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION, AND ARE
NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL AGENCY.
<PAGE>
AVAILABLE INFORMATION
This Prospectus, which constitutes a part of a Registration Statement filed
by the Company with the Commission under the Securities Act of 1933, as amended,
omits certain of the information set forth in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is hereby
made to the Registration Statement and to the exhibits thereto for further
information with respect to the Company and the securities offered hereby.
Copies of the Registration Statement and the exhibits thereto are on file at the
offices of the Commission and may be obtained upon payment of the prescribed fee
or may be examined without charge at the public reference facilities of the
Commission described below. The Commission also maintains a site on the World
Wide Web (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding registrants such as the Company,
which file electronically with the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy and information statements and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N. W., Washington, D. C. 20549, and at the
following Regional Offices of the Commission: Midwest Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and
Northeast Regional Office, 7 World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N. W., Washington, D. C. 20549,
at prescribed rates.
The Company furnishes its stockholders with annual reports containing
audited consolidated financial statements.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following materials previously filed by the Company with the Commission
pursuant to the Exchange Act, are incorporated herein by reference as of their
respective dates: the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997 and the description of the Common Stock contained in
the Company's Registration Statement on Form 8-A filed on July 15, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the securities offered hereby, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in this Prospectus, in
a supplement to this Prospectus or in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed supplement to this Prospectus or in any document that also is
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the request of any such person, a copy of any
or all of the foregoing documents incorporated herein by reference other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into the documents that this Prospectus incorporates). Telephone
requests for such copies should be directed to Bank United Shareholder Services
at (800) 965-6630. Written requests should be directed to Bank United Corp.,
Investor Relations Department, at P.O. Box 1370, Houston, Texas 77251-1370.
2
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE DETAILED
INFORMATION, DEFINITIONS AND FINANCIAL STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE HEREIN. INVESTORS SHOULD CAREFULLY REVIEW ALL OF SUCH MATERIAL. THE
FISCAL YEAR FOR BANK UNITED CORP. AND ITS SUBSIDIARY, BANK UNITED, A FEDERALLY
CHARTERED SAVINGS BANK (THE "BANK"), ENDS SEPTEMBER 30, AND, UNLESS OTHERWISE
INDICATED, REFERENCES TO PARTICULAR YEARS ARE TO FISCAL YEARS ENDING SEPTEMBER
30 OF THE YEAR INDICATED. AS USED HEREIN, THE TERM "COMPANY" REFERS TO BANK
UNITED CORP. AND ITS PREDECESSORS, AND ITS CONSOLIDATED SUBSIDIARIES, UNLESS
OTHERWISE INDICATED OR THE CONTEXT OTHERWISE REQUIRES.
THE COMPANY
The Company is a broad-based financial services provider to consumers and
businesses in Texas and selected regional markets throughout the United States.
At September 30, 1997, the Company operated a 71-branch community banking
network serving nearly 211,000 households, as well as 11 commercial banking
offices in nine states across the country. As of September 30, 1997, the Company
was the largest publicly traded financial institution headquartered in Texas,
with $12.0 billion in assets, $5.2 billion in deposits, and $598.5 million in
stockholders' equity. The Company's address is 3200 Southwest Freeway, Suite
1600, Houston, Texas 77027 and its telephone number is (713) 543-6500.
The Company was incorporated in Delaware on December 19, 1988 as USAT
Holdings Inc. and became the holding company for the Bank upon the Bank's
formation on December 30, 1988. The Bank is a federally chartered savings bank,
the deposits of which are insured by the Savings Association Insurance Fund (the
"SAIF") which is administered by the FDIC. In December 1996, the Company
formed a wholly owned, Delaware subsidiary, BNKU Holdings, Inc. ("Holdings").
After acquiring the common stock of Holdings, the Company contributed its common
stock investment in the Bank to Holdings, and Holdings assumed the obligations
of the Company. As a result of these transactions, Holdings became the sole
direct subsidiary of the Company and the Bank became the sole direct subsidiary
of Holdings.
BUSINESS STRATEGY
After initially obtaining assets and deposits through the acquisition of
failed thrifts and from the Resolution Trust Corporation (the "RTC"), the
Company's operating strategy historically emphasized traditional single family
mortgage lending and deposit gathering activities, with a focus on minimizing
interest rate and credit risk while maximizing the net value of the Company's
assets and liabilities. Over the past few years, however, the Company's
management has pursued a strategy designed to reduce its reliance on its single
family mortgage lending by developing higher margin commercial and consumer
lending lines of business. During this time, the Company has engaged in more
aggressive marketing campaigns and increased its commercial and consumer loan
portfolios and the level of lower cost transaction and commercial deposit
accounts. During fiscal 1997, commercial loans increased $1.2 billion, or 124%.
Also during fiscal 1997, the outstanding balance of transaction accounts
increased to 45% of total deposits, from 39% at September 30, 1996.
While the pursuit of this strategy entails risks different from those
present in traditional single family mortgage lending, the Company believes it
has taken appropriate measures to manage these risks adequately. To manage
potential credit risk, the Company has developed comprehensive credit approval
and underwriting policies and procedures for these lines of business. To offset
operational and competitive risk, the Company has hired experienced commercial
banking professionals and trained other personnel to manage and staff these
businesses, and closely monitors the conduct and performance of the businesses.
In fiscal 1998, the Company purchased twenty-one branches with deposits
totalling $1.5 billion. The Company intends to continue to pursue additional
expansion opportunities, including acquisitions, while maintaining adequate
capitalization. See "Risk Factors -- Evolution of Business".
3
<PAGE>
OPERATIONAL OVERVIEW
-- COMMUNITY BANKING GROUP. The Community Banking Group's principal
activities include deposit gathering, consumer lending, small business
banking, and investment product sales. The Community Banking Group,
which has marketed itself under the name "Bank United" since 1993,
operates a 71-branch community banking network, a 24-hour telephone
banking center, and a 70-unit ATM network, which together serve as the
platform for the Company's consumer and small business banking
activities. The community banking branch network includes 37 branches
in the greater Houston area, 29 branches in the Dallas/Ft. Worth
metroplex and two branches each in Austin and San Antonio, as well as a
branch and credit card processing center in Phoenix, Arizona. Through
this branch network, the Company maintains approximately 472,000
accounts with approximately 211,000 households and businesses. In
fiscal 1998, the Company purchased twenty-one branches with deposits
totalling $1.5 billion. See "Recent Developments".
-- COMMERCIAL BANKING GROUP. The Commercial Banking Group provides credit
and a variety of cash management and other services to certain
commercial businesses, which are primarily real estate related.
Business is solicited in Texas and in targeted regional markets
throughout the United States. The Commercial Banking Group has expanded
its products and industry specialties to include healthcare lending,
commercial syndications, and other industrial and commercial loan
products.
-- FINANCIAL MARKETS GROUP. The Financial Markets Group manages the
Company's asset portfolio activities, including the acquisition,
management, and securitization of loans, In February 1997, this group
assumed responsibility for mortgage originations through the Company's
wholesale origination offices. Additionally, under the supervision of
the Asset and Liabilities Committee ("ALCO"), the Financial Markets
Group is responsible for the Company's investment portfolio, for
interest rate risk hedging strategies, and for securing funding sources
other than consumer and commercial deposits.
-- MORTGAGE SERVICING GROUP. At September 30, 1997, the Company's single
family mortgage servicing portfolio totalled $24.5 billion or 249,600
loans. Mortgage loan servicing activities include collecting and
accounting for payments from borrowers, remitting payments to
investors, collecting funds for and paying mortgage-related expenses
such as taxes and insurance, inspecting the collateral as required,
collecting from and, if necessary, foreclosing on delinquent borrowers,
disposing of properties received in foreclosures, and generally
administering the loans. Mortgage servicing operations are technology
and process management intensive. The Company views itself as being
competitively positioned to service loans in an efficient and cost
effective manner relative to its peers. The Mortgage Servicing Group
also offers insurance and other ancillary products and services to its
loan customers. See "Risk Factors -- Interest Rate Risk".
-- MORTGAGE BANKING GROUP. Historically, the Mortgage Banking Group's
principal activities were comprised of retail originations, wholesale
mortgage originations, and mortgage servicing. Consistent with the
Company's strategy to reduce its reliance in its single family mortgage
lending, the Company evaluated its alternatives with respect to its
mortgage banking business. As a result of this evaluation and in order
to attempt to mitigate the negative effect on profitability of
increased competition in the loan origination business of the Mortgage
Banking Group, the Company implemented a profitability improvement plan
during fiscal 1996. Effective February 1, 1997, the Company sold
certain of its retail and wholesale mortgage origination offices. In
connection with this sale, the remaining offices were restructured or
closed. The Company retained its mortgage servicing business, its
retail mortgage origination capability in Texas through its community
banking branches, and its wholesale mortgage and other origination
capabilities through its Financial Markets Group.
4
<PAGE>
BACKGROUND OF THE COMPANY
The Company was organized, and through June 17, 1996, operated as a
subsidiary of Hyperion Holdings Inc., a Delaware corporation ("Hyperion
Holdings"). During that period, all of the outstanding shares of Hyperion
Holdings were owned by Hyperion Partners. The general partner of Hyperion
Partners is indirectly controlled by three individuals, including Lewis S.
Ranieri, who from the Company's organization in 1988, has served as Chairman of
the Board of the Company and, until July 15, 1996, also as President and Chief
Executive Officer ("CEO") of the Company and Chairman of the Board of the
Bank.
INITIAL PUBLIC OFFERING
In August 1996, the Company completed the offering of 12,075,000 shares of
Class A Common Stock (the "August Offering"). Of the 12,075,000 shares sold,
910,694 were sold by the Company, with the balance sold by certain selling
stockholders, including the Federal Savings and Loan Insurance Corporation
("FSLIC") Resolution Fund (the "FDIC-FRF"), which sold all of the shares
received upon exercise of the warrant (the "Warrant") it held to purchase
158,823 shares of common stock of the Bank ("Bank Common Stock"). Since the
August Offering, the Class A Common Stock has been listed on the NASDAQ under
the symbol "BNKU". On February 10, 1997, restrictions on the sale of 7,189,763
shares expired and certain stockholders sold 4,276,713 shares in a secondary
public offering on that date. On August 14, 1997, restrictions on 3,018,847
shares lapsed and certain Stockholders sold 1,218,511 shares in a secondary
public offering on that date. This Prospectus covers an additional 140,171
shares which could be sold by the Selling Stockholder at any time following
August 14, 1997. See "Selling Stockholders".
MANAGEMENT
Day-to-day operations of the Bank are directed by Barry C. Burkholder,
President and CEO of the Bank, who has over 20 years of commercial banking
experience with specific experience in consumer banking, mortgage banking and
related areas. In connection with the Restructuring and the August Offering, on
July 15, 1996 Mr. Burkholder became Chairman of the Board of the Bank as well as
President and CEO of the Company. The executive management group of the Bank
consists of seven individuals each having more than 20 years of related industry
experience, the majority of which comes from commercial banking.
Lewis S. Ranieri, who has over 20 years of investment experience with
particular expertise in the field of mortgage-backed securities ("MBS"),
serves as Chairman of the Board of the Company and as a director of the Bank and
provides strategic and managerial advice to the Company. See "Risk
Factors -- Dependence on Key Personnel".
FUTURE TAX BENEFITS
In connection with the acquisition from the FSLIC of certain of the assets
and the assumption of all the deposits and certain other liabilities of United
Savings Association of Texas ("Old USAT"), an insolvent thrift (the
"Acquisition"), and the related Assistance Agreement (as defined herein), the
Company succeeded to and recorded substantial net operating loss carry forwards
("NOLs") which have resulted in certain tax benefits. As of September 30,
1997, the Company had NOLs of $702 million available to reduce taxable income in
future years. Pursuant to the Tax Benefits Agreement (as defined herein), the
Bank is required to pay to the FDIC-FRF a specified portion of net tax benefits
obtained through the taxable year ending nearest to September 30, 2003.
The August Offering and the Company's subsequent secondary offerings have
been structured with the intent to preserve the beneficial tax attributes of the
Company as described above. Accordingly, transfers and other dispositions of
Common Stock by certain holders of the Common Stock were limited by provisions
of the Company's Restated Certificate of Incorporation (the "Certificate") and
the Company's By-Laws (the "By-Laws") for up to three years following the
August Offering, except in certain circumstances, including the approval of the
Board of Directors of the Company. The limitations on transfers and other
dispositions of Common Stock allowed the Company to record a $101.7 million tax
benefit in fiscal 1996. See "Risk Factors -- Limitations on Use of Tax Losses;
Restrictions on Transfers of Stock".
CLAIMS RELATED TO FORBEARANCE AGREEMENT
In connection with the original acquisition of the Bank by the Company, the
Federal Home Loan Bank Board (the "FHLBB") approved a forbearance letter,
issued on February 15, 1989 (the "Forbearance Agreement"). Under the terms of
the Forbearance Agreement, the FSLIC agreed to waive or forbear from the
5
<PAGE>
enforcement of certain regulatory provisions with respect to regulatory capital
requirements, liquidity requirements, accounting requirements and other matters.
After the enactment of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 ("FIRREA"), the OTS took the position that the capital
standards set forth in FIRREA apply to all savings institutions, including those
institutions, such as the Bank, that had been operating under previously granted
capital and accounting forbearances, and that FIRREA eliminated these
forbearances. The position of the OTS has adversely affected the Bank by
curtailing the growth and reducing the leverage contemplated by the terms of the
Forbearance Agreement.
In 1995, the Bank, the Company, and Hyperion Partners (collectively,
"Plaintiffs") filed suit against the United States in the Court of Federal
Claims for alleged failures of the United States to abide by the terms of the
Forbearance Agreement.
The Company currently expects the trial of its case to commence during the
first quarter of fiscal 1999. While the Company expects Plaintiffs' claims for
damages will exceed $200 million, and that they could range as high as $1
billion or more, the Company is unable to predict the outcome of Plaintiffs'
suit against the United States and the amount of judgment for damages, if any,
that may be awarded. Plaintiffs expect that the government may argue that no
breach by the government has occurred and that damages to Plaintiffs, in any
event, would approach zero.
The Company and the Bank have entered into an agreement with Hyperion
Partners acknowledging that the Company and the Bank are entitled to receive 85%
of the amount, if any, recovered as a result of the settlement of or a judgment
on such claims, and that Hyperion Partners is entitled to receive 15% of such
amount. The agreement was approved by the disinterested directors of the
Company. The Company is also unable to predict the timing of the resolution of
its claims. Consequently, no assurances can be given as to the results of this
suit.
RECENT DEVELOPMENTS
In January 1998 the Company purchased 18 branches and related deposits from
Guardian Savings and Loan Association. The branches, six in the Houston area and
12 in the Dallas/Ft. Worth metroplex, have combined deposits of $1.45 billion.
In December 1997, the Company purchased three branches in the Dallas area, with
$66 million in deposits from California Federal Bank, FSB. The Company plans to
close 12 of the 21 branches purchased.
FORWARD-LOOKING INFORMATION
Statements and financial discussion and analysis by management contained
herein that are not historical facts are forward-looking statements made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements involve a number of risks and
uncertainties. The important factors that could cause actual results to differ
materially from the forward-looking statements include, without limitation:
changes in interest rates and economic conditions; the shift in the Company's
emphasis from residential mortgage lending to community and commercial banking
activities; increased competition for deposits and loans; changes in the
availability of funds; changes in local economic and business conditions;
changes in availability of residential mortgage loans originated by other
financial institutions or the Company's ability to purchase such loans on
favorable terms; the Company's ability to make acquisitions of other depository
institutions, their assets or their liabilities and the Company's successful
integration of any such acquisitions; transactions in the common stock of the
Company that might result in an Ownership Change triggering an annual limitation
on the use of the Company's NOLs under Section 382 of the Code; changes in the
ability of the Bank to pay dividends on its common stock; changes in applicable
statutes and government regulations or their interpretation; the loss of senior
management or operating personnel; claims with respect to representations and
warranties made by the Company to purchasers and insurers of mortgage loans and
to purchasers of mortgage servicing rights; claims of noncompliance by the
Company with statutory and regulatory requirements; and changes in the status of
litigation to which the Company is a party. See "Risk Factors".
6
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA
The following table presents summary selected historical financial data of
the Company. The information set forth below should be read in conjunction with
the consolidated financial statements of the Company and the Notes thereto. The
statement of operations data set forth below for each of the three years ended
September 30, 1997, 1996 and 1995 and the statement of financial condition data
at September 30, 1997 and 1996 are derived from, and are qualified by reference
to, the audited consolidated financial statements. The statement of operations
data set forth below for the years ended September 30, 1994 and 1993 and the
statement of financial condition data at September 30, 1995, 1994 and 1993 are
derived from the Company's audited consolidated financial statements.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
AT OR FOR THE YEAR ENDED SEPTEMBER 30,
------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ----------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS)
STATEMENT OF FINANCIAL CONDITION DATA
Total assets......................... $ 11,967,072 $ 10,712,377 $ 11,983,534 $ 8,910,161 $ 8,440,556
Loans, net........................... 8,995,229 7,519,488 8,260,240 5,046,174 4,862,379
Mortgage-backed securities, net...... 1,569,705 1,657,908 2,398,263 2,828,903 2,175,925
Deposits............................. 5,247,668 5,147,945 5,182,220 4,764,204 4,839,388
Federal Home Loan Bank advances...... 3,992,344 3,490,386 4,383,895 2,620,329 2,185,445
Securities sold under agreements to
repurchase......................... 1,308,600 832,286 1,172,533 553,000 310,000
Notes payable........................ 220,199 115,000 115,000 115,000 115,000
Minority interest -- Bank Preferred
Stock.............................. 185,500 185,500 185,500 85,500 85,500
Total stockholders' equity........... 598,479 531,043 496,103 451,362 389,203
Book value per common share.......... 18.94 16.81 17.19 15.64 13.48
STATEMENT OF OPERATIONS DATA
Interest income...................... $ 810,708 $ 812,312 $ 746,759 $ 494,706 $ 482,490
Interest expense..................... 546,064 584,778 552,760 320,924 300,831
------------ ------------ ------------ ----------- -----------
Net interest income.............. 264,644 227,534 193,999 173,782 181,659
Provision for credit losses.......... 18,107 16,469 24,293 6,997 4,083
------------ ------------ ------------ ----------- -----------
Net interest income after
provision for credit losses.... 246,537 211,065 169,706 166,785 177,576
Non-interest income.................. 83,432 96,189 104,150 113,961 140,530
Non-interest expense................. 172,136 239,418 183,745 194,665 195,803
------------ ------------ ------------ ----------- -----------
Income before income taxes,
minority interest and
extraordinary loss............. 157,833 67,836 90,111 86,081 122,303
Income tax expense (benefit)......... 60,686 (75,765) 37,415 (31,899) (26,153)
Minority interest.................... 18,253 24,666 10,977 9,010 6,537
Extraordinary loss(1)................ 2,323 -- -- -- 14,549
------------ ------------ ------------ ----------- -----------
Net income....................... $ 76,571 $ 118,935 $ 41,719 $ 108,970 $ 127,370
============ ============ ============ =========== ===========
Net income applicable to common
shares......................... $ 76,571 $ 113,327 $ 38,824 $ 102,519 $ 118,640
Earnings per common share(2)
As reported...................... 2.42 3.87 1.35 3.55 4.11
Basic............................ 2.42 4.06 1.45 3.78 4.41
Diluted.......................... 2.40 3.87 1.35 3.55 4.11
Dividends per common share........... 0.56 3.46 -- -- --
Average number of common shares
outstanding........................ 31,596 29,260 28,863 28,863 28,863
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
AT OR FOR THE YEAR ENDED SEPTEMBER 30,
------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA AND RATIOS)
CERTAIN RATIOS AND OTHER DATA
Return on average assets............. 0.69% 1.06% 0.40% 1.32% 1.74%
Return on average assets before
deduction of minority interest..... 0.85 1.28 0.50 1.42 1.83
Return on average common equity...... 13.50 23.06 8.80 26.32 44.87
Stockholders' equity to assets....... 5.00 4.96 4.14 5.07 4.61
Tangible stockholders' equity to
tangible assets.................... 4.89 4.81 3.93 4.68 4.14
Net yield on interest-earning
assets............................. 2.52 2.10 1.92 2.20 2.61
Non-interest expense to average total
assets............................. 1.55 2.13 1.76 2.35 2.68
Efficiency ratio(3).................. 49.78 73.87 58.03 65.78 64.33
Allowance for credit losses to net
nonaccrual loans(4)................ 72.61 44.24 48.74 30.73 71.71
Allowance for credit losses to total
loans.............................. 0.43 0.52 0.44 0.46 0.61
Net loan charge-offs to average
loans(4)........................... 0.23 0.17 0.16 0.30 0.05
Nonperforming assets to total
assets............................. 0.63 1.12 0.84 1.09 0.72
Regulatory capital ratios of the Bank
Tangible capital................. 7.72 6.57 6.20 6.01 6.17
Core capital..................... 7.77 6.64 6.29 6.17 6.43
Total risk-based capital......... 13.18 13.09 13.45 14.02 14.87
Number of community banking
branches........................... 71 70 65 62 62
Number of commercial banking
origination offices................ 11 9 9 5 3
Number of mortgage origination
offices(5)......................... 6 85 122 145 109
Single family servicing
portfolio(6)....................... $ 24,518,396 $ 13,246,848 $ 12,532,472 $ 8,920,760 $ 8,073,226
Single family originations........... 2,188,273 3,602,009 3,226,324 5,424,550 6,645,096
Loans purchased for held to maturity
portfolio.......................... 1,086,249 148,510 2,658,093 1,406,275 1,212,103
CERTAIN RATIOS AND OTHER DATA --
EXCLUDING NON-RECURRING ITEMS(7)
Net income........................... $ 75,970 $ 56,392 $ 41,719 $ 50,804 $ 97,736
Net income applicable to common
shares............................. 75,970 53,295 38,824 47,585 91,461
Earnings per common share(2)
As reported...................... 2.40 1.82 1.35 1.65 3.17
Basic............................ 2.40 1.93 1.45 1.76 3.39
Diluted.......................... 2.38 1.82 1.35 1.65 3.17
Operating earnings(8)................ 149,116 114,659 91,295 75,514 77,105
Return on average assets............. 0.68% 0.50% 0.40% 0.61% 1.34%
Return on average assets before
deduction of minority interest..... 0.85 0.67 0.50 0.72 1.42
Return on average common equity...... 13.41 11.47 8.80 12.27 34.43
Efficiency ratio(3).................. 49.78 57.06 58.03 65.78 64.33
</TABLE>
- ------------
(1) The fiscal 1997 extraordinary loss represents costs and charges associated
with the repurchase and retirement of a majority of the Company's senior
notes. The fiscal 1993 extraordinary loss represents costs and charges
associated with the repayment of the note payable to a related party and
long-term debt.
(2) Effective October 1, 1997, the Company adopted Statement of Financial
Accounting Standard ("SFAS") No. 128, "Earnings per Share", which
establishes standards for computing and presenting earnings per share
("EPS"). It replaces the presentation of primary EPS with basic EPS and
requires dual presentation of basic and diluted EPS for entities with
complex capital structures.
(3) Efficiency ratio is non-interest expenses (excluding goodwill amortization),
divided by net interest income plus non-interest income, excluding net gains
(losses) on securities, MBS, other loans, and the sale of mortgage offices.
(4) During April 1997, $31.3 million of nonperforming loans were sold with
related charge-offs of $5.0 million. Primarily as a result of this
transaction, the allowance for credit losses to net nonaccrual loans
increased to 72.61% at September 30, 1997 from 44.24% at September 30, 1996.
Excluding the charge-offs related to this sale of nonperforming assets, net
loan charge-offs to average loans would have been 0.17% for fiscal 1997.
(5) During fiscal 1997, the Company sold certain of its mortgage origination
offices. In connection with this sale, the remaining offices were
restructured or closed. The mortgage origination branches shown at September
30, 1997 are wholesale mortgage origination offices, which are currently
part of the Financial Markets Group.
(NOTES CONTINUED ON FOLLOWING PAGE)
8
<PAGE>
(6) Includes purchased servicing rights of $7.5 billion at September 30, 1997,
which had not been transferred as of period end.
(7)Non-recurring items, deemed not to be part of the routine core business
operations of the Company, are composed of the following for fiscal 1997,
1996, 1994, and 1993:
-- 1997 (increased EPS as reported $0.02) -- (1) the gain on the sale of
mortgage offices of $4,748 ($2,924 net of tax) and (2) the extraordinary
loss on extinguishment of debt of $3,574 ($2,323 net of tax).
-- 1996 (increased EPS as reported $2.05) -- (1) a one-time SAIF
assessment charge of $33,657 ($20,729 net of tax), (2) compensation
expense of $7,820 ($4,816 net of tax), (3) charges totalling $12,537
($7,729 net of tax) related to the restructuring of and items
associated with the mortgage origination business, (4) a contractual
payment to previous minority interests of $5,883, and (5) a tax benefit
of $101,700.
-- 1994 (increased EPS as reported $1.90) -- a tax benefit of $58,166
-- 1993 (increased EPS as reported $0.94) -- (1) a tax benefit of
$44,183 and (2) an extraordinary loss on extinguishment of debt
of $14,549.
(8) Operating earnings consists of income, including net gains (losses) on the
sales of single family servicing rights and single family warehouse loans,
before taxes, minority interest, and extraordinary losses and excludes net
gains (losses) on securities, MBS, other loans, and non-recurring items
("operating earnings"). Management believes operating earnings facilitates
trend analysis because it excludes transactions that are typically
considered opportunistic or non-recurring and not part of the routine core
business operations of the Company. Operating earnings is provided as other
data and should not be considered an alternative to net income or as an
indicator of the Company's operating performance or cash flow as a measure
of liquidity. See note 7 above.
9
<PAGE>
THE OFFERING
<TABLE>
<CAPTION>
<S> <C>
Class A Common Stock offered by
the Selling Stockholder................. 140,171 shares
Common Stock to be outstanding immediately
after the Offering...................... 31,595,596 shares of Common Stock(1)
Risk Factors.............................. General Business Risks; Evolution of Business; Interest Rate Risk;
Competition; Funding and Liquidity; Concentration of Loan Portfolio;
Active Purchaser of Loan Portfolios; Limitations on Use of Tax
Losses; Restrictions on Transfers of Stock; Holding Company
Structure; Ability to Pay Dividends; Regulation; Limitations on Stock
Ownership; Anti-takeover Provisions; Dependence on Key Personnel;
Potential Effect of Shares Eligible for Future Sale; Liability under
Representations and Warranties and Other Credit Risks; Litigation.
Use of Proceeds........................... The Company will receive none of the proceeds of the sales of shares
by the Selling Stockholder. See "Use of Proceeds".
NASDAQ Symbol............................. BNKU
</TABLE>
- ------------
(1) Excludes shares issuable upon exercise of options to be issued to employees
of the Company and shares to be issued, or issuable upon exercise of options
to be issued, to non-employee directors of the Company.
10
<PAGE>
RISK FACTORS
Investment in the Class A Common Stock involves certain risks. Prospective
purchasers should carefully consider the following risk factors, in addition to
the other information included in this Prospectus, when evaluating the Company
and its business in making an investment decision.
GENERAL BUSINESS RISKS
The Company's business is subject to various material business risks. For
example, changes in prevailing interest rates can have significant effects on
the Company's business. Some of the risks to which the Company's business are
subject may become more acute in periods of economic slowdown or recession.
During such periods, payment delinquencies and foreclosures generally increase
and could result in an increased incidence of claims and legal actions against
the Company. In addition, such conditions could lead to a potential decline in
demand for the Company's products and services.
EVOLUTION OF BUSINESS
The Company's strategy in recent years has been to emphasize and grow its
Community Banking Group and Commercial Banking Group and to reduce the
significance over time of its single family mortgage lending business. See
"Prospectus Summary -- Business Strategy". The Community Banking Group and the
Commercial Banking Group are expected to continue to represent a growing portion
of the Company's business. This strategic shift has occurred at a time of
increasing competitive pressures in the mortgage banking business. Community and
commercial banking activities, while potentially more profitable, generally
entail a greater degree of credit risk than does single family lending, the
historical focus of the Company. Specifically, the performance of commercial,
construction and small business loans is more sensitive to regional and local
economic conditions. Collateral valuation requires more detailed analysis and is
more variable than single family mortgage lending. Loan balances for these types
of loans are typically larger than those for single family mortgage loans and,
thus, when there are defaults and losses, they can be greater on a per loan
basis than those for single family mortgages. Similarly, loss levels are more
difficult to predict. Commercial and community banking typically includes a
greater amount of unsecured lending, which presents different risks than secured
single family mortgage lending. The sources of repayment are not related to
collateral and can be more difficult to understand and pursue. Similarly, loan
default prevention and collection for commercial and community banking also can
be more complex and difficult than that for single family mortgage lending. For
example, business loans are not typically made with standardized loan documents.
Thus, the opportunity for mistakes and documentation risks are increased.
Moreover, a liquid secondary market for most types of commercial and business
loans does not exist. The operational, interest rate, and competitive risks
associated with commercial and community banking are different than those for
single family mortgage lending and require skills and experience of management
and staff different than that for single family mortgage lending. When
evaluating such credits, more factors need to be considered. Management must be
more knowledgeable of a wider variety of business enterprises and industries
that borrow money. Intensive, ongoing customer contact is required, as well as
complex analysis of financial statements at the time of loan approval and on an
ongoing basis. Servicing these customers requires closer monitoring and more
individualized analysis than does single family mortgage lending. Commercial and
community banking pricing is very competitive and more subjective than that for
single family mortgage lending.
INTEREST RATE RISK
The Company's net interest income is the differential or "spread" between
the interest earned on loans and investments and the interest paid on deposits,
borrowings and notes payable. The Company has traditionally managed its business
to limit its overall exposure to changes in interest rates; however, under the
Company Board's current policies, management has some latitude to increase the
Company's interest rate sensitivity position within certain limits. See
"Prospectus Summary -- Business Strategy". As a result, changes in market
interest rates may have a greater impact on the Company's financial performance
in the future than they have had historically.
11
<PAGE>
An increase in the general level of interest rates may affect the Company's
net interest spread due to the periodic caps which limit the interest rate
change on the Company's MBS and loans that pay interest at adjustable rates.
Additionally, an increase in interest rates may, among other things, reduce the
demand for loans and the Company's ability to originate loans. A decrease in the
general level of interest rates may affect the Company through, among other
things, increased prepayments on its loan and MBS portfolios and increased
competition for deposits. Accordingly, changes in the level of market interest
rates affect the Company's net interest spread, loan origination volume, MBS and
loan portfolios, and the overall results of the Company.
The Company's mortgage servicing portfolio increased to $24.5 billion at
September 30, 1997 and the related mortgage servicing rights ("MSRs")
increased to $272.2 million. Mortgage servicing portfolio balances are
influenced by market interest rates. Lower market interest rates may result in
an increase in prepayments if consumers refinance their mortgages at lower rates
of interest. Generally, if prepayments increase, the volume and life of the
servicing portfolio are reduced, decreasing the servicing fee revenue that will
be earned over the life of that portfolio and the price third-party purchasers
of such servicing portfolios would be willing to pay. Conversely, if interest
rates rise, prepayments may be expected to decrease, and may result in an
increase in the value of the servicing portfolio. In an effort to reduce its
exposure to unfavorable valuation changes resulting from declines in interest
rates and to offset lost servicing fee revenue caused by declining servicing
portfolio balances, the Company enters into traditional off-balance-sheet
hedging instruments such as interest rate floors. The Company also proactively
solicits borrowers within its servicing portfolio that indicate a possibility of
refinancing in order to maintain the value of the portfolio by reducing
prepayments. Through September 30, 1997, there has been no MSR value impairment
recorded.
COMPETITION
The Company experiences substantial competition both in attracting and
retaining deposits and in making loans. Its most direct competition for deposits
historically has come from other thrift institutions, commercial banks and
credit unions doing business in the Houston and Dallas/Ft. Worth metroplex. The
Company competes primarily with certain commercial banks and thrift
institutions, some of which have a substantial presence in the same markets as
the Company. In addition, as with all banking organizations, the Company has
experienced increasing competition from nonbanking sources. For example, the
Company also competes for funds with full service and discount broker-dealers
and with other investment alternatives, such as mutual funds and corporate and
governmental debt securities. The Company's competition for loans comes
principally from other thrift institutions, commercial banks, mortgage banking
companies, consumer finance companies, insurance companies and other
institutional lenders. The Company and its peers compete primarily on the basis
of the price at which products are offered and on customer service. A number of
institutions with which the Company competes for deposits and loans have
significantly greater assets and capital than the Company and some also may have
significantly lower deposit insurance costs.
FUNDING AND LIQUIDITY
In recent years, the Company has relied primarily on collateralized
borrowings, such as borrowings from the FHLB of Dallas ("FHLB Dallas") and
borrowings on securities sold under agreements to repurchase ("reverse
repurchase agreements") to fund its asset growth. For the year ended September
30, 1997, such borrowings funded 42% of the Company's average assets. The
Company's collateralized borrowings have an average maturity of approximately 19
months.
The Company borrows funds from the FHLB Dallas under a security and pledge
agreement that restricts the amount of such borrowings to the greater of 65% of
fully disbursed single family loans, and 45% of total assets. At September 30,
1997, the amounts available under these restrictions were $4.2 billion and $5.4
billion, respectively, $4.0 billion of which had been advanced at September 30,
1997. Effective November 15, 1997, the FHLB Dallas raised the borrowing
limitation on fully disbursed single family loans to 75%.
The Company's ability to borrow on reverse repurchase agreements is limited
to the amount and market value of collateral that is available to collateralize
through reverse repurchase agreements. At September 30, 1997, the Company had
$1.3 billion in such collateral, $1.2 billion of which was collateralizing such
reverse repurchase agreements. See "-- Interest Rate Risk". There can be no
assurance that the Company will continue
12
<PAGE>
to be able to arrange collateralized borrowings or other borrowing arrangements
to fund continued growth in its assets.
CONCENTRATION OF LOAN PORTFOLIO
The Company's current single family mortgage loan portfolio is concentrated
in certain geographical regions, particularly California. The performance of
such loans may be affected by changes in local economic and business conditions.
Unfavorable or worsened economic conditions throughout California could have a
material adverse effect on the Company's financial condition and results of
operations.
ACTIVE PURCHASER OF LOAN PORTFOLIOS
The Company has been an active purchaser and securitizer of residential
mortgage loans originated by other financial institutions. While the Company
intends to continue to pursue this strategy on a selective basis, no assurance
can be given as to the continued availability of portfolio acquisition
opportunities or the Company's ability to obtain such portfolios on favorable
terms.
When purchased by the Company, loan portfolios generally do not contain
delinquent or defaulted loans and may contain loans that have been outstanding
for a relatively short period of time. Consequently, the delinquency and loss
experience of the Company's loan portfolios to date are not necessarily
indicative of future results.
LIMITATIONS ON USE OF TAX LOSSES; RESTRICTIONS ON TRANSFERS OF STOCK
As of September 30, 1997, the Company had NOLs of $702 million available to
reduce taxable income in future years. Such tax deductions would be subject to
significant limitation under Section 382 of the Internal Revenue Code of 1986,
as amended (the "Code") if the Company undergoes an ownership change (as
defined herein, an "Ownership Change"). In the event of an Ownership Change,
Section 382 of the Code imposes an annual limitation on the amount of taxable
income a corporation may offset with NOLs and certain recognized built-in
losses. The limitation imposed by Section 382 of the Code for any post-change
year would be determined by multiplying the value of the Company's stock
(including both common stock and preferred stock) at the time of the Ownership
Change by the applicable long-term tax exempt rate (which was 5.45% for
September 30, 1997). Any unused annual limitation may be carried over to later
years, and the limitation may under certain circumstances be increased by the
built-in gains in assets held by the Company at the time of the change that are
recognized in the five-year period after the change. Under current conditions,
if an Ownership Change were to occur, the Company's annual NOL utilization would
be limited to a maximum of approximately $76 million based on the closing market
price at September 30, 1997. If the Company were to undergo an Ownership Change,
a significant portion of the $101.7 million tax benefit recognized in fiscal
1996 would be required to be reversed, with a corresponding charge to earnings.
The amount of the charge to earnings declines as the Company utilizes its NOLs.
Although the Company has attempted to protect against a future Ownership
Change that is not initiated by the Company by imposing in the Company's
Certificate and By-Laws limitations on disqualifying transfers at any time
during the three years following the August Offering, these restrictions are
incomplete since the Company cannot, consistent with NASDAQ requirements,
prevent the settlement of transactions through NASDAQ, and because the
prohibition on transfers by stockholders who own or have owned, directly or
indirectly, 5% or more of the common stock of the Company or are otherwise
treated as 5% stockholders or a "higher tier entity" under Section 382 of the
Code and the regulations promulgated thereunder ("5% Stockholders") does not
limit transactions in the securities of such 5% Stockholders that could give
rise to ownership shifts within the meaning of the applicable Section 382 rules.
Moreover, the Board of Directors of the Company retains the discretion to waive
these limitations or to take certain other actions that could trigger an
Ownership Change, including through the issuance of additional shares of Common
Stock in subsequent public or private offerings or through subsequent merger or
acquisition transactions.
Because the Company has utilized a substantial portion of its available
ownership limitation in connection with the August Offering, the Company may not
be able to engage in significant transactions that would create a further shift
in ownership within the meaning of Section 382 of the Code within the three-year
period following the August Offering without triggering an Ownership Change.
There can be no assurance that future actions on
13
<PAGE>
the part of the Company's stockholders or the Company itself will not result in
the occurrence of an Ownership Change.
HOLDING COMPANY STRUCTURE; ABILITY TO PAY DIVIDENDS
The Company, through Holdings, owns all the outstanding common stock of the
Bank. As a holding company without significant assets other than its indirect
ownership of all of the common stock of the Bank, the Company's ability to pay
dividends on the Common Stock and to meet its other cash obligations, including
debt service on its notes payable and its other obligations, is dependent upon
the receipt of dividends from Holdings, which, in turn, is dependent on receipt
of dividends from the Bank on the common stock of the Bank ("Bank Common
Stock"). The declaration of dividends by the Bank on all classes of its capital
stock is subject to the discretion of the Board of Directors of the Bank, the
terms of the Bank Preferred Stock, and applicable regulatory requirements. While
it is the present intention of the Board of Directors of the Bank to declare
dividends in an amount sufficient to provide the Company (through Holdings) with
the cash flow necessary to meet its debt service obligations in respect of the
Subordinated Notes and to pay dividends to the holders of Common Stock, subject
to applicable regulatory restrictions, no assurance can be given that
circumstances which would limit or preclude the declaration of such dividends
will not exist in the future.
As of September 30, 1997, the Bank had $201 million of available capacity
for the payment of dividends on its capital stock without prior approval of the
OTS. If the Company were to undergo an Ownership Change, these amounts would be
significantly reduced. See " -- Limitations on Use of Tax Losses; Restriction
on Transfers of Stock".
REGULATION
Both the Company, as a savings and loan holding company, and the Bank, as a
federal stock savings bank, are subject to significant regulation. Statutes and
regulations now affecting the Company and the Bank, respectively, may be changed
at any time, and the interpretation of these statutes and regulations by
examining authorities is also subject to change. There can be no assurance that
future changes in the regulations or in their interpretation will not adversely
affect the business of the Company. As a savings and loan holding company, the
Company is subject to regulation and examination by the OTS. As a federal
savings bank, the Bank is subject to examination from time to time by the OTS,
its primary regulator, and the FDIC, as administrator of the Bank Insurance Fund
(the "BIF") and the SAIF. There can be no assurance that the OTS or the FDIC
will not, as a result of such examinations or otherwise, impose various
requirements or regulatory sanctions upon the Bank or the Company, respectively.
If the Company were to become subject to regulation as a bank holding company by
the Board of Governors of the Federal Reserve Systems (the "Federal Reserve
Board"), whether as a result of the consolidation into the Federal Reserve
Board of all regulatory powers over financial institutions or some other
occurrence, the Company would become subject to capital requirements and
limitations on the types of business activities in which it may engage that are
not currently applicable to it as a savings and loan holding company. If this
were to occur, the Company believes that it would be permitted to continue its
activities and operations substantially as currently conducted and that the
Subordinated Notes would constitute Tier 2 Capital, as currently defined by the
regulations of the Federal Reserve Board.
LIMITATIONS ON STOCK OWNERSHIP
With certain limited exceptions, federal regulations prohibit a person or
company or a group of persons deemed to be acting in concert from, directly or
indirectly, acquiring more than 10% of any class of voting stock or obtaining
the ability to control in any manner the election of a majority of the directors
or otherwise direct the management or policies of a savings institution, such as
the Bank, without prior notice or application to and the approval of the OTS.
ANTI-TAKEOVER PROVISIONS
The Certificate, By-Laws, and applicable provisions of the Delaware General
Corporation Law (the "DGCL"), contain several provisions that may make more
difficult the acquisition of control of the Company without the approval of the
Company Board. Certain provisions of the Certificate and the By-Laws, among
other
14
<PAGE>
things, (1) authorize the issuance of additional shares of Common Stock and
shares of "blank check" preferred stock; (2) classify the Company Board into
three classes, each of which (after an initial transition period) will serve for
staggered three year periods; (3) provide that a director of the Company may be
removed by the stockholders only for cause; (4) provide that only the Company
Board or the Chairman of the Board of the Company may call special meetings of
the stockholders; (5) provide that the stockholders may take action only at a
meeting of the stockholders or by unanimous written consent; (6) provide that
stockholders must comply with certain advance notice procedures in order to
nominate candidates for election to the Company Board or to place stockholders'
proposals on the agenda for consideration at meetings of the stockholders; and
(7) provide that the stockholders may amend or repeal any of the foregoing
provisions of the Certificate or the By-Laws only by a vote of 80% of the stock
entitled to vote generally in the election of directors (the "Voting Stock").
With certain exceptions, Section 203 of the DGCL ("Section 203") imposes
certain restrictions on mergers and other business combinations between the
Company and any holder of 15% or more of the Common Stock.
DEPENDENCE ON KEY PERSONNEL
The Company and the Bank are managed by a small number of senior management
and operating personnel, the loss of certain of whom could have a material
adverse effect on the Company. The key employees of the Company are Messrs.
Burkholder, Nocella, Heffron, and Coben. The Company does not maintain key
person insurance for any of these individuals. The primary retention vehicles
used by the Company are employment agreements or letters and participation in
the Executive Management Compensation Program and the 1996 Stock Incentive Plan.
Lewis S. Ranieri serves as non-executive Chairman of the Company Board and
a director of the Bank. In addition to Mr. Lewis Ranieri, four other members of
the boards of directors of the Company and the Bank are Selling Stockholders who
received their shares through the general partner of Hyperion Partners.
At the time of the August Offering the Company entered into a three-year
consulting agreement with Mr. Lewis Ranieri, under which Mr. Ranieri provides
strategic and managerial advice to the Company in addition to his continuing
role as non-executive Chairman of the Company and a director of the Bank. While
the Company has entered into a consulting agreement with Mr. Ranieri, he may
devote a substantial amount of time to other business ventures, including
activities which are competitive with the Company, through Hyperion Partners II
L.P., a Delaware limited partnership ("Hyperion Partners II") and its
affiliates and otherwise. While the Company does not believe that the loss of
Mr. Ranieri's services would have a material adverse effect on the day-to-day
operations of the Company, the loss of the overview afforded by Mr. Ranieri's
market experience, contacts and insight would be difficult for the Company to
replace. In addition, three other directors of the Company, Ms. Sloan, Mr. Shay
and Mr. Golush, also have an economic interest in Hyperion Partners II.
POTENTIAL EFFECT OF SHARES ELIGIBLE FOR FUTURE SALE
As of February 3, 1998, the Company had 31,595,596 shares of Common Stock
outstanding. Of such shares, 12,075,000 were registered under the Securities Act
of 1933 and sold to the public in August 1996 and 19,520,596 are subject to
contractual restrictions on sale which expire at various times. The Company has
agreed to use its best efforts to register the 19,520,596 shares under the
Securities Act and to maintain the effectiveness of such registration for a
specified period. This Prospectus covers 140,171 shares. An additional 4,610,858
shares are covered by another Prospectus. The Company intends to register the
remaining 9,171,815 shares of Common Stock which become available for sale on
various dates commencing August 14, 1999, at the appropriate time. See "Selling
Stockholders".
LIABILITY UNDER REPRESENTATIONS AND WARRANTIES AND OTHER CREDIT RISKS
In the ordinary course of business, the Company has liability under
representations and warranties made to purchasers and insurers of mortgage loans
and to purchasers of mortgage servicing rights ("MSRs"). In connection with
MSRs that the Company purchases, it may have liability as a successor to
third-party originators' representations and warranties. Under certain
circumstances, the Company may become liable for the unpaid principal and
interest on defaulted loans if there has been a breach of representations or
warranties. In the case of any mortgage loans found to be defective with respect
to representations or warranties made or succeeded to by
15
<PAGE>
the Company, the Company may be required to repurchase such mortgage loans, with
any subsequent loss on resale or foreclosure being borne by the Company. The
Company's losses from breaches of representations and warranties have not been
material to date.
LITIGATION
The Bank is involved in legal proceedings occurring in the ordinary course
of business that management believes, after consultation with legal counsel, are
not, in the aggregate, material to the financial condition, results of
operations, or liquidity of the Bank or the Company.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of Class A
Common Stock by the Selling Stockholder. See "Selling Stockholders".
16
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholder is a general partner of Hyperion Partners. The
following table sets forth information with respect to the beneficial ownership
of Common Stock by the Selling Stockholder and the number of shares of Class A
Common Stock offered hereby.
CLASS A COMMON
STOCK OWNED
PRIOR TO OFFERING OFFERED
---------------------- HEREBY
PERCENT --------
HOLDER SHARES OF CLASS SHARES
- ------------------------------------- ---------- -------- --------
LSR Hyperion Corp.(1)................ 1,210,933 4.27% 140,171
- ------------
(1) All stock owned by Lewis S. Ranieri. Assuming all shares offered hereby are
sold by LSR Hyperion Corp., it will still own 1,070,762 shares or 3.78% of
the shares of Class A Common Stock following the Offering.
SELLING STOCKHOLDER LETTER AGREEMENT
The following summary of the material provisions of the Letter Agreement
does not purport to be complete and is qualified in its entirety by reference to
the Letter Agreement which is an exhibit to the Registration Statement on Form
S-1 (File No. 333-06229) filed by the Company with the Commission on August 7,
1996.
In connection with the Company's August Offering, certain of the holders of
the Company's Common Stock (the "Restricted Stockholders") entered into a
Letter Agreement with each of the Hyperion Partners and the Company (the
"Letter Agreements"). Pursuant to the Letter Agreements, each Restricted
Stockholder consented to the distribution (the "Distribution") by Hyperion
Partners of the shares of common stock of Hyperion Holdings, and agreed to hold
the common stock of Hyperion Holdings received pursuant to the Distribution
according to the terms of such Letter Agreement. Also, each Restricted
Stockholder, by executing a Letter Agreement and agreeing to be bound thereby,
consented to and approved of, for purposes of Section 228 of the DGCL and
otherwise, the Merger Agreement, dated as of June 17, 1996, by and between
Hyperion Holdings and the Company (the "Merger Agreement"), and the related
merger.
Pursuant to the Letter Agreements, each Restricted Stockholder acknowledged
(i) that under the By-Laws of Hyperion Holdings, it is not permitted to transfer
any shares of capital stock of Hyperion Holdings except pursuant to the Merger
Agreement and (ii) that, under the By-Laws, after the Distribution and prior to
the consummation of the August Offering, the stockholder would not effect any
Transfer of shares of capital stock of the Company (a) in the case of Restricted
Stockholders who received shares in respect of Class C Common Stock, $0.01 par
value per share ("Class C Common Stock"), in the Merger, except as such
stockholder would have been permitted to transfer such Class C Common Stock
under the Stockholders' Agreement, dated as of January 5, 1990, by and among the
Company and the other parties specified therein (the "Stockholders
Agreement"), and (b) in the case of any other Restricted Stockholders, except
in accordance with the terms of the limited partnership agreement of Hyperion
Partners applicable to the transfer of partnership interests of Hyperion
Partners. Each 5% Stockholder acknowledged that it is not permitted, prior to
the earlier of an initial public offering ("IPO") or October 31, 1996, to
transfer any such shares owned by such 5% Stockholder (other than to a person of
whom the 5% Stockholder is a wholly owned subsidiary) or acquire any additional
such shares. An IPO was completed in August 1996.
Each Stockholder who retained shares of Common Stock was not permitted to
sell such shares for (1) one year after the August Offering, if such stock was
received in respect of general partnership interests in Hyperion Partners or (2)
six months after the August Offering (although a regulated New Jersey insurance
company may sell shares in a private off-market transaction subject to Rule 144
limits and reasonable representations requested by the underwriters). Subject to
certain adjustments by the Board of Directors of the Company based upon advice
of the underwriters to improve the marketability of the shares of Common Stock
sold in the August Offering, each 5% Stockholder was permitted to sell up to 45%
of such holder's shares of Common Stock in the August Offering, except for
LW-SP1 and LW-SP2, affiliates of Lehman Brothers Inc., which were prohibited
from selling any shares until August 8, 1998, and any other Stockholder was
permitted to sell up to 16% of its shares in the August Offering (subject to
increase pro rata in the discretion of the Board of Directors of the Company if
the
17
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5% Stockholders elected to sell fewer than the maximum number of shares they are
permitted to sell in the August Offering). Each Stockholder acknowledged that,
except for shares that could have been sold pursuant to the August Offering but
were not sold at the election of such 5% Stockholder, no 5% Stockholder is
permitted by the By-Laws to acquire or Transfer any shares of capital stock of
the Company for three years following the August Offering (or upon termination
of the Letter Agreement, if earlier) unless as of an earlier date the Company
Board determines that such acquisition or Transfer would not be reasonably
likely to have a material adverse effect on the tax position of the Company.
The Board of Directors of the Company approved sales of shares of Class A
Common Stock in excess of the 45% and 16% limitations as necessary to satisfy
the underwriters' over-allotment options in the August Offering.
Pursuant to the Letter Agreement the Company has filed registration
statements under the Securities Act with respect to 10,348,781 shares of Class A
Common Stock held by any Stockholder. The Company is obligated to take action to
keep such registration statements effective (subject to occasional periods of
suspension of such effectiveness as necessary) until the first to occur of (1)
the date on which all shares of Common Stock registered thereunder have been
sold pursuant thereto, (2) December 31, 1999, and (3) the date on which such
registration under the Securities Act is no longer required to sell such shares
without restriction. The Registration Statement of which this Prospectus forms a
part is being filed by the Company to satisfy this obligation.
PLAN OF DISTRIBUTION
All or part of the Shares may be offered by the Selling Stockholder from
time to time in transactions on the NASDAQ, in privately negotiated
transactions, through the writing of options on the Shares or a combination of
such methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The methods by which the Shares may be sold or
distributed may include, but not be limited to, the following: (1) a cross or
block trade in which the broker or dealer so engaged will attempt to sell the
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction; (2) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account; (3) an exchange
distribution in accordance with the rules of such exchange; (4) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
(5) privately negotiated transactions; (6) short sales or borrowings, returns
and reborrowings of the Shares pursuant to stock loan agreements to settle short
sales; and (7) delivery in connection with the issuance of securities by
issuers, other than the Company, that are exchangeable for (whether optional or
mandatory), or payable in, such Shares (whether such securities are listed on a
national securities exchange or otherwise) or pursuant to which such Shares may
be distributed, and (8) a combination of any such methods of sale or
distribution. In effecting sales, brokers or dealers engaged by the Selling
Stockholder may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from the Selling Stockholder or
from the purchasers in amounts to be negotiated immediately prior to the sale.
The Selling Stockholder may also sell such shares in accordance with Rule 144
under the Securities Act. If Shares are sold in an underwritten offering, the
Shares may be acquired by the underwriters for their own account and may be
further resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The names of the underwriters with respect to
any such offering and the terms of the transactions, including any underwriting
discounts, concessions or commissions and other items constituting compensation
of the underwriters and broker-dealers, if any, will be set forth in a
Prospectus Supplement relating to such offering. Any public offering price and
any discounts, concessions or commissions allowed or reallowed or paid to
broker-dealers may be changed from time to time. Unless otherwise set forth in a
Prospectus Supplement, the obligations of the underwriters to purchase the
Shares will be subject to certain conditions precedent and the underwriters will
be obligated to purchase all of the Shares specified in such Prospectus
Supplement if any such Shares are purchased. This Prospectus also may be used by
transferees, pledgees or donees of the Selling Stockholder or by other persons
acquiring Shares, including brokers who borrow the Shares to settle short sales
of shares of the Common Stock, and who wish to offer and sell such Shares under
circumstances requiring or making desirable its use.
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<PAGE>
From time to time the Selling Stockholder may engage in short sales, short
sales against the box, puts and calls and other transactions in securities of
the Company or derivatives thereof, and may sell and deliver the shares in
connection therewith. From time to time Selling Stockholder may pledge its
Shares pursuant to the margin provisions of their respective customer agreements
with their respective brokers or otherwise. Upon a default by a Selling
Stockholder, the broker or pledgees may offer and sell the pledged shares of
Class A Common Stock from time to time.
The Company has agreed to use its best efforts to maintain the
effectiveness of the registration of the Shares being offered hereunder until
the first to occur of (1) the date on which all shares of Common Stock
registered thereunder have been sold pursuant thereto, (2) December 31, 1999,
and (3) the date on which such registration under the Securities Act is no
longer required to sell such shares without restriction.
None of the proceeds from the sales of the Shares by the Selling
Stockholder will be received by the Company. No underwriting commissions or
discounts will be paid by the Company in connection with the Offering. The
Company has agreed to bear certain expenses in connection with the registration
of the Shares being offered by the Selling Stockholder. The Company has agreed
to indemnify the Selling Stockholder and any underwriters, brokers, dealers or
agents (and controlling persons) against certain liabilities, including certain
liabilities under the Securities Act.
The Selling Stockholder and any broker-dealers who act in connection with
the sale of Shares hereunder may be deemed to be "underwriters" as that term
is defined in the Securities Act, and any commissions received by them and
profit on any resale of the Shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to sell,
or a solicitation of an offer to buy, by any person in any jurisdiction in which
it is unlawful for such person to make such offer or solicitation. Neither the
delivery of this Prospectus at any time nor any sale made hereunder shall, under
any circumstances, imply that the information herein is correct as of any date
subsequent to the date hereof.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Class A Common
Stock offered hereby have been passed upon for the Company by Wachtell, Lipton,
Rosen & Katz, New York, New York.
EXPERTS
The consolidated financial statements of the Company as of September 30,
1997 and 1996 and for each of the three years in the period ended September 30,
1997 incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended September 30, 1997, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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- ------------------------------------------------------
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN AS CONTAINED IN THIS
PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER
TO BUY ANY SECURITY OTHER THAN THE SHARES OF CLASS A COMMON STOCK OFFERED
HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES OFFERED HEREBY TO ANY PERSONS IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO SUCH PERSON.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCE CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
PAGE
-----
Available Information................... 2
Incorporation by Reference.............. 2
Prospectus Summary...................... 3
Risk Factors............................ 11
Use of Proceeds......................... 16
Selling Stockholders.................... 17
Legal Matters........................... 19
Experts................................. 19
140,171 SHARES
[LOGO--BANK UNITED CORP.]
CLASS A COMMON STOCK
________________
PROSPECTUS
________________
FEBRUARY 10, 1998
- ------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. 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
----------
SEC registration fee................. $ --
NASD filing fee...................... --
NASDAQ listing fee................... --
Blue Sky fees and expenses........... --
Accounting fees and expenses......... 5,000
Legal fees and expenses.............. 5,000
Printing and engraving expenses...... 5,000
Miscellaneous fees and expenses...... --
----------
Total........................... $ 15,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of 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
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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.
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 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits. The following exhibits are filed as part of this
Registration Statement.
<TABLE>
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EXHIBIT NO. DESCRIPTION
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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. (Incorporated by reference to Exhibit 2.1 to Form S-1, Registration
No. 333-06229)
2.2 -- Merger Agreement, dated as of June 17, 1996, by and between the Company and Hyperion
Holdings related to the Merger. (Incorporated by reference to Exhibit 2.2 to Form S-1,
Registration No. 333-06229)
3.1 -- Form of Restated Certificate of Incorporation of the Registrant, as amended. (Incorporat-
ed by reference to Exhibit 3.1 to Form S-1, Registration No. 333-06229)
3.2 -- Form of By-Laws of the Registrant. (Incorporated by reference to Exhibit 3.2 to Form
S-1, Registration No. 333-06229)
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. (Incorporated
by reference to Exhibit 4.1 to Form S-1, Registration No. 333-06229)
4.2 -- Form of 8.05% Senior Note due May 15, 1998 (included in the Indenture filed as Exhibit 4.1
hereto). (Incorporated by reference to Exhibit 4.2 to Form S-1, Registration No. 333-
06229)
4.3 -- Exchange and Registration Rights relating to Registrant's 8.05% Senior Notes due May 15,
1998. (Incorporated by reference to Exhibit 4.3 to Form S-1, Registration No. 333-06229)
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. (Incorporated by reference to Exhibit 4.4 to Form S-1, Registration No. 333-06229)
4.5 -- Form of Class A common stock Certificate. (Incorporated by reference to Exhibit 4.5 to
Form S-1, Registration No. 333-06229)
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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
(Incorporated by reference to Exhibit 4.2 to Form S-1, Registration No. 333-19861)
4.7 -- Form of 8.875% Subordinated Notes due May 1, 2007 (included in the Indenture filed as
Exhibit 4.6 hereto) (Incorporated by reference to Exhibit 4.3 to Form S-1, Registration
No. 333-19861)
4.8 -- 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 (Incorporated by reference to Exhibit 4.7 to Form S-1, Registration
No. 333-19861)
4.9 -- 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 (Incorporated by reference to Exhibit 4.8 to Form S-1, Registration No. 333-19861)
5 -- Opinion of Wachtell, Lipton, Rosen & Katz, L.L.P. as to the validity of the shares of
Class A Common Stock. (Incorporated by reference to Exhibit 5 to Form S-1, Registration
No. 333-19237)
10.1 -- Assistance Agreement, dated December 30, 1988, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners, and the FSLIC. (Incorporated by reference to Exhibit 10.1 to
Form S-1, Registration No. 333-06229)
10.1a -- Settlement and Termination Agreement, dated as of December 23, 1993, among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners and the FDIC. (Incorporated by reference
to Exhibit 10.1a to Form S-1, Registration No. 333-06229)
10.1b -- Tax Benefits Agreement, dated December 28, 1993, among the Bank, the Registrant, Hyperion
Holdings, Hyperion Partners and the FDIC. (Incorporated by reference to Exhibit 10.1b to
Form S-1, Registration No. 333-06229)
10.2 -- Acquisition Agreement, dated December 30, 1988, between the Bank and the
FSLIC.(Incorporated by reference to Exhibit 10.2 to Form S-1, Registration No. 333-06229)
10.3 -- Warrant Agreement, dated December 30, 1988, between the Bank and the FSLIC. (Incorporated
by reference to Exhibit 10.3 to Form S-1, Registration No. 333-06229)
10.3a -- Amended and Restated Warrant Agreement dated December 28, 1993, between the Bank and the
FDIC. (Incorporated by reference to Exhibit 10.3a to Form S-1, Registration No. 333-06229)
10.4 -- Regulatory Capital Maintenance Agreement, dated December 30, 1988 among the Bank, the
Registrant, Hyperion Holdings, Hyperion Partners, and the FSLIC (terminated).
(Incorporated by reference to Exhibit 10.4 to Form S-1, Registration No. 333-06229)
10.5 -- Federal Stock Charter of the Bank and First Amendment to charter approved on August 26,
1992. (Incorporated by reference to Exhibit 10.5 to Form S-1, Registration No. 333-06229)
10.6 -- Amended and Restated Federal Stock Charter of the Bank and Second Amendment approved on
October 30, 1992. (Incorporated by reference to Exhibit 10.6 to Form S-1, Registration No.
333-06229)
10.6a -- Third Amendment to the Federal Stock Charter of the Bank approved on April 23, 1996.
(Incorporated by reference to Exhibit 10.6a to Form S-1, Registration No. 333-06229)
10.6b -- Amended and Restated Bylaws of the Bank. (Incorporated by reference to Exhibit 10.6b to
Form S-1, Registration No. 333-06229)
10.7 -- Specimen Preferred Stock, Series A, certificate, $25.00 per share stated value of the
Bank. (Incorporated by reference to Exhibit 10.7 to Form S-1, Registration No. 333-06229)
10.7a -- Certificate of Designation of Noncumulative Preferred Stock, Series A, of the Bank.
(Incorporated by reference to Exhibit 10.7a to Form S-1, Registration No. 333-06229)
10.7b -- Specimen Preferred Stock, Series B, certificate, $25.00 per share stated value, of the
Bank. (Incorporated by reference to Exhibit 10.7b to Form S-1, Registration No. 333-06229)
10.7c -- Certificate of Designation of Noncumulative Preferred Stock, Series B, of the Bank.
(Incorporated by reference to Exhibit 10.7c to Form S-1, Registration No. 333-06229)
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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). (Incorporated by reference to Exhibit 10.8 to Form
S-1, Registration No. 333-06229)
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. (Incorporated by
reference to Exhibit 10.8a to Form S-1, Registration No. 333-06229)
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. (Incorporated by reference
to Exhibit 10.8b to Form S-1, Registration No. 333-06229)
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. (Incorporated by reference
to Exhibit 10.8c to Form S-1, Registration No. 333-06229)
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. (Incorporated by
reference to Exhibit 10.8d to Form S-1, Registration No. 333-06229)
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). (Incorporated by reference to Exhibit 10.9 to
Form S-1, Registration No. 333-06229)
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.
(Incorporated by reference to Exhibit 10.10 to Form S-1, Registration No. 333-06229)
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.).
(Incorporated by reference to Exhibit 10.10a to Form S-1, Registration No. 333-06229)
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.).
(Incorporated by reference to Exhibit 10.10b to Form S-1, Registration No. 333-06229)
10.11 -- Lease Agreement, dated November 20, 1990, between the Bank and Greenway Plaza, LTD.
(Leased premises at 3800 Buffalo Speedway). (Incorporated by reference to Exhibit 10.11 to
Form S-1, Registration No. 333-06229)
10.12 -- Employment Agreement, dated March 18, 1991, between the Bank and Barry C. Burkholder.
(Incorporated by reference to Exhibit 10.12 to Form S-1, Registration No. 333-06229)
10.12a -- Amendment, dated April 10, 1996, to the Employment Agreement between the Bank and Barry C.
Burkholder. (Incorporated by reference to Exhibit 10.12a to Form S-1, Registration No.
333-06229)
10.13 -- Letter Agreement Related to Employment, dated April 4, 1990, between the Bank and Anthony
J. Nocella. (Incorporated by reference to Exhibit 10.13 to Form S-1, Registration No.
333-06229)
10.14 -- Letter Agreement Related to Employment, dated June 18, 1990 between the Bank and George R.
Bender. (Incorporated by reference to Exhibit 10.14 to Form S-1, Registration No.
333-06229)
10.15 -- Letter Agreement Related to Employment, dated April 6, 1990, between the Bank and Jonathon
K. Heffron. (Incorporated by reference to Exhibit 10.15 to Form S-1, Registration No.
333-06229)
10.16 -- Letter Agreement Related to Employment, dated May 10, 1991, between the Bank and Leslie H.
Green. (Incorporated by reference to Exhibit 10.16 to Form S-1, Registration No.
333-06229)
10.17 -- Management Incentive Plan, dated April 20, 1992. (Incorporated by reference to Exhibit
10.17 to Form S-1, Registration No. 333-06229)
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. (Incorporated by reference to Exhibit 10.18 to Form S-1, Registration No.
333-06229)
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10.22 -- Supplemental Executive Savings Plan of the Bank. (Incorporated by reference to Exhibit
10.22 to Form S-1, Registration No. 333-06229)
10.23 -- Directors Supplemental Savings Plan of the Bank. (Incorporated by reference to Exhibit
10.23 to Form S-1, Registration No. 333-06229)
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,
Registration No. 333-06229)
10.25 -- Tax Sharing Agreement dated as of May 1, 1996, by and between the Company and the Bank.
(Incorporated by reference to Exhibit 10.25 to Form 10-K for fiscal year ended September
30, 1996)
10.26 -- Form of The Company's 1996 Stock Incentive Plan. (Incorporated by reference to Exhibit
10.26 to Form S-1, Registration No. 333-06229)
10.27 -- Form of The Company's Director Stock Plan. (Incorporated by reference to Exhibit 10.27 to
Form S-1, Registration No. 333-06229)
10.28 -- Employment Agreement, dated August 1, 1996, between the Company and Barry C. Burkholder.
(Incorporated by reference to Exhibit 10.28 to Form 10-K for fiscal year ended September
30, 1996)
10.29 -- Employment Agreement, dated August 1, 1996, between the Company and Anthony J. Nocella.
(Incorporated by reference to Exhibit 10.29 to Form 10-K for fiscal year ended September
30, 1996)
10.30 -- Employment Agreement, dated August 1, 1996, between the Company and Jonathon K. Heffron.
(Incorporated by reference to Exhibit 10.30 to Form 10-K for fiscal year ended September
30, 1996)
10.31 -- Employment Agreement, dated August 1, 1996, between the Company and Ronald D. Coben.
(Incorporated by reference to Exhibit 10.31 to Form 10-K for fiscal year ended September
30, 1996)
10.32 -- Form of Nontransferable Stock Agreement. (Incorporated by reference to Exhibit 10.32 to
Form S-1, Registration No. 333-06229)
10.33 -- Form of Stock Option Agreement. (Incorporated by reference to Exhibit 10.33 to Form S-1,
Registration No. 333-06229)
10.34 -- Consulting Agreement. (Incorporated by reference to Exhibit 10.23 to Form 10-K for the
fiscal year ended September 30, 1996)
10.35 -- Recovery Agreement. (Incorporated by reference to Exhibit 10.24 to Form 10-K for the
fiscal year ended September 30, 1996)
10.36 -- Stock Purchase Agreement, dated January 15, 1993, between Hyperion Partners and Hyperion
Holdings. (Incorporated by reference to Exhibit 10.36 to Form S-1, Registration No.
333-06229)
10.37 -- Asset Purchase and Sale Agreement, dated January 17, 1997, between the Bank and National
City Mortgage Co. (Incorporated by reference to Exhibit 10.38 to Form 10-Q for the quarter
ended December 31, 1996)
10.38 -- Lease Agreement, dated November 21, 1997, between the Bank and Utah State Retirement fund.
(Leased premises at 3200 Southwest Freeway) (Incorporated by reference to Exhibit 10.38 to
Form 10-K for fiscal year ended September 30, 1997)
*23.1 -- Consent of Deloitte & Touche LLP, independent auditors.
</TABLE>
- ------------
* 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.
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:
II-5
<PAGE>
(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, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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-6
<PAGE>
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 FEBRUARY 9, 1998.
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.
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURES TITLE DATE
- ------------------------------------------------------ ---------------------------------- -------------------
(1) Principal Executive Officer:
/s/BARRY C. BURKHOLDER President and February 9, 1998
BARRY C. BURKHOLDER Chief Executive Officer
(2) Principal Financial and Accounting Officer:
/s/ANTHONY J. NOCELLA Vice Chairman and February 9, 1998
ANTHONY J. NOCELLA Chief Financial Officer
(3) Directors:
* Chairman and Director February 9, 1998
LEWIS S. RANIERI
___________________ Director February 9, 1998
BARRY C. BURKHOLDER
* Director February 9, 1998
LAWRENCE CHIMERINE, PH.D.
* Director February 9, 1998
DAVID M. GOLUSH
* Director February 9, 1998
PAUL M. HORVITZ, PH.D.
* Director February 9, 1998
ALAN E. MASTER
__________________ Director February 9, 1998
ANTHONY J. NOCELLA
II-7
<PAGE>
<CAPTION>
SIGNATURES TITLE DATE
- ------------------------------------------------------ ---------------------------------- -------------------
* Director February 9, 1998
SALVATORE A. RANIERI
* Director February 9, 1998
SCOTT A. SHAY
* Director February 9, 1998
PATRICIA A. SLOAN
* Director February 9, 1998
MICHAEL S. STEVENS
* Director February 9, 1998
KENDRICK R. WILSON III
*By /s/JONATHON K. HEFFRON
JONATHON K. HEFFRON
ATTORNEY-IN-FACT
</TABLE>
II-8
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 to Form S-1 (Registration Statement No. 333-37645) of Bank
United Corp. on Form S-3 of our report dated October 24, 1997, appearing in the
Annual Report on Form 10-K of Bank United Corp. for the year ended September 30,
1997, and to the reference to us under the heading "Experts" in such
Prospectus, which is part of such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Houston, Texas
February 9, 1998
