AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 8, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BANK UNITED CORP.
BANK UNITED CAPITAL TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3528556
DELAWARE TO BE APPLIED FOR
(STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
------------------------
3200 SOUTHWEST FREEWAY
SUITE 2600
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
SUITE 2600
HOUSTON, TX 77027
(713) 543-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S AGENT FOR SERVICE)
------------------------
<TABLE>
<S> <C> <C>
COPIES TO:
JAMES F. MUNSELL, ESQ. CRAIG M. WASSERMAN, ESQ. LEE MEYERSON, ESQ.
CLEARY, GOTTLIEB, STEEN & HAMILTON WACHTELL, LIPTON, ROSEN & KATZ SIMPSON THACHER & BARTLETT
ONE LIBERTY PLAZA 51 WEST 52ND STREET 425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10006 NEW YORK, NY 10019 NEW YORK, NEW YORK 10017
(212) 225-2000 (212) 403-1000 (212) 455-2000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined by
market conditions.
------------------------
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. [ ]
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. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM OFFERING PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE PER MAXIMUM AGGREGATE
SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) OFFERING PRICE(3)
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Preferred stock, par value $[ ] per
share, of Bank United Corp..............................
- -------------------------------------------------------------------------------------------------------------------
Class A common stock, par value, $0.01 per share,
of Bank United Corp.....................................
- -------------------------------------------------------------------------------------------------------------------
Depositary Shares of Bank United Corp.(4).................
- -------------------------------------------------------------------------------------------------------------------
Junior subordinated debt securities of
Bank United Corp........................................
- -------------------------------------------------------------------------------------------------------------------
Trust preferred securities of Bank United Capital
Trust(5)................................................
- -------------------------------------------------------------------------------------------------------------------
Guarantee by Bank United Corp. of trust preferred
securities of Bank United Capital Trust(6)..............
- -------------------------------------------------------------------------------------------------------------------
TOTAL................................................. $680,000,000
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- -------------------------------------------------------------------------------------------------------------------
</TABLE>
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TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
- --------------------------------------------------------------------------------
Preferred stock, par value $[ ] per
share, of Bank United Corp..............................
- --------------------------------------------------------------------------------
Class A common stock, par value, $0.01 per share,
of Bank United Corp.....................................
- --------------------------------------------------------------------------------
Depositary Shares of Bank United Corp.(4).................
- --------------------------------------------------------------------------------
Junior subordinated debt securities of
Bank United Corp........................................
- --------------------------------------------------------------------------------
Trust preferred securities of Bank United Capital
Trust(5)................................................
- --------------------------------------------------------------------------------
Guarantee by Bank United Corp. of trust preferred
securities of Bank United Capital Trust(6)..............
- --------------------------------------------------------------------------------
TOTAL................................................. $189,040.00
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(COVER CONTINUED ON NEXT PAGE)
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<PAGE>
(CONTINUED FROM COVER)
(1) Pursuant to Rule 457(o) under the Securities Act, which permits the
registration fee to be calculated on the basis of the maximum offering price
of all securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per share or proposed maximum offering price. There are being
registered hereunder such presently indeterminate principal amount or number
of shares of preferred stock, Class A common stock and depositary shares of
Bank United Corp., junior subordinated debt securities of Bank United Corp.,
trust preferred securities of Bank United Capital Trust and guarantee of
trust preferred securities of Bank United Capital Trust by Bank United Corp.
as may be offered from time to time, with an aggregate initial offering
price not to exceed $680 million.
(2) We will determine the proposed maximum offering price per unit in connection
with our issuance of the securities registered hereunder.
(3) Estimated solely for the purpose of computing the registration fee.
(4) In the event that we elect to offer to the public fractional interests in
shares of preferred stock registered under this registration statement,
depositary shares, evidenced by depositary receipts issued under a deposit
agreement, will be distributed to those persons purchasing such fractional
interests, and the shares of preferred stock will be issued to the
depositary under any such agreement.
(5) Each trust preferred security represents a preferred undivided beneficial
ownership interest in the assets of Bank United Capital Trust.
(6) We are also registering under this registration statement our guarantee of
the trust preferred securities. In accordance with Rule 457(n) under the
Securities Act, no separate consideration will be received for any such
guarantee or any other such obligation.
WE HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL WE SHALL FILE A FURTHER AMENDMENT
THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER
BECOME EFFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 8, 1999
PRELIMINARY PROSPECTUS
BANK
UNITED CORP.
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BANK UNITED CAPITAL TRUST
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$680,000,000
PREFERRED STOCK
CLASS A COMMON STOCK
JUNIOR SUBORDINATED DEBT SECURITIES
GUARANTEE
of Bank United Corp.
TRUST PREFERRED SECURITIES
of Bank United Capital Trust
INVESTING IN THE OFFERED SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 1.
Our Class A common stock is traded on the NASDAQ under the symbol "BNKU". On
April 7, 1999, the last reported sale price of our Class A common stock on the
NASDAQ was $38.6875 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.
WE WILL PROVIDE SPECIFIC TERMS OF
THESE SECURITIES IN SUPPLEMENTS TO
THIS PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND
ANY SUPPLEMENTS CAREFULLY BEFORE YOU
INVEST.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO SELL SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT.
THESE SECURITIES ARE NOT OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
------------------------
APRIL , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Risk Factors............................ 1
Use of Proceeds......................... 4
Ratios of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges
and Preferred Dividends............... 4
Bank United Corp........................ 5
Bank United Capital Trust............... 6
Description of Offered Securities....... 8
Relationship Among the Trust Preferred
Securities, the Trust Preferred
Securities
Guarantee and the Junior Subordinated
Notes Held by Bank United Capital
Trust................................. 33
Selling Stockholders.................... 34
Plan of Distribution.................... 35
Legal Matters........................... 36
Experts................................. 36
Forward-Looking Information............. 36
About This Prospectus................... 37
Where You Can Find More Information..... 38
</TABLE>
<PAGE>
RISK FACTORS
An investment in any of the securities offered by this prospectus involves
certain risks. Before you decide to purchase any of these securities, you should
carefully consider the following risk factors, in addition to the other
information included in this prospectus and the applicable prospectus
supplement, before making an investment decision.
HOLDERS OF SHARES OF OUR CLASS A COMMON STOCK COULD EXPERIENCE DILUTION.
Some of our stockholders hold shares of Class B common stock, which have no
voting rights. They may, however, elect to convert their shares to Class A
common stock. Class B common stock is also converted to Class A common stock
automatically when a holder of Class B common stock transfers such shares to a
person who is not an affiliate of the transferring holder. There are 3,241,320
shares of Class B common stock outstanding.
We issued 31,595,596 shares in our IPO in August, 1996. Since that time, we
have repurchased 34,200 shares and issued 1,500 shares, so that we currently
have 31,562,896 shares of common stock outstanding. Of the 31,595,596 shares
issued in our IPO, 12,075,000 were registered under the Securities Act of 1933
and sold to the public in the IPO and 19,520,596 were subject to contractual
restrictions on sale which expired or expire at various times. We agreed to use
our best efforts to register these 19,520,596 shares under the Securities Act
and to maintain the effectiveness of such registration for a specified period.
The registration statement of which this prospectus forms a part covers
9,171,815 of these 19,520,596 shares. The contractual restrictions on the sale
of 8,205,778 of these 19,520,596 shares will expire on August 8, 1999, unless
our Board of Directors determines as of an earlier date that a sale or transfer
of these shares will not have a material adverse effect on our tax position.
OUR OBLIGATIONS UNDER THE TRUST PREFERRED SECURITIES GUARANTEE AND THE JUNIOR
SUBORDINATED DEBT SECURITIES ARE SUBORDINATED.
Our obligations under the trust preferred securities guarantee and under
the junior subordinated debt securities will rank junior in priority of payment
to all of our senior indebtedness. This means that we cannot make any payments
on the trust preferred securities guarantee or the junior subordinated debt
securities if we default on a payment of senior indebtedness and do not cure the
default within the applicable grace period, or if the senior indebtedness
becomes immediately due because of a default and has not yet been paid in full.
In addition, our obligations under the trust preferred securities guarantee and
under the junior subordinated debt securities will rank junior to all existing
and future liabilities of our subsidiaries.
We cannot make any payments on the trust preferred securities guarantee if
we default on a payment on any of our other debt. In addition, in the event of
our bankruptcy, liquidation or dissolution, our assets would be available to pay
obligations under the trust preferred securities guarantee only after we have
made all payments on our other liabilities.
Neither the trust preferred securities of Bank United Capital Trust, our
junior subordinated debt securities nor our trust preferred securities guarantee
limit our ability or that of our subsidiaries to incur additional indebtedness,
including indebtedness that ranks senior in priority of payment to the junior
subordinated debt securities and the trust preferred securities guarantee.
BANK UNITED CAPITAL TRUST'S ABILITY TO MAKE PAYMENTS ON ITS TRUST PREFERRED
SECURITIES WILL DEPEND ENTIRELY ON OUR PAYMENTS ON OUR JUNIOR SUBORDINATED DEBT
SECURITIES.
The only assets of Bank United Capital Trust will be its investment in our
junior subordinated debt securities. Accordingly, the ability of Bank United
Capital Trust to pay scheduled distributions on its trust preferred securities,
as well as the redemption price and the liquidation amount of the trust
preferred securities, is solely dependent upon us paying, when due, the related
payments we are obligated to pay on the junior subordinated debt securities.
1
<PAGE>
OUR OBLIGATIONS UNDER THE TRUST PREFERRED SECURITIES GUARANTEE ARE LIMITED.
The trust preferred securities guarantee only guarantees that we will make
distribution, redemption and liquidation payments on the trust preferred
securities of Bank United Capital Trust if it has the funds to do so itself but
does not. If we fail to pay in full principal or interest where due on our
junior subordinated debt securities, Bank United Capital Trust will not have
sufficient funds to make distribution, redemption or liquidation payments on the
trust preferred securities. In those circumstances, you also will not be able to
rely upon the trust preferred securities guarantee for payment of these amounts.
Instead, you:
o may directly sue us or seek other remedies to collect your
proportionate share of payments owed; or
o rely on the Property Trustee to enforce Bank United Capital Trust's
rights under the junior subordinated debt securities.
OUR DEFERRAL OF DISTRIBUTIONS ON THE JUNIOR SUBORDINATED DEBT SECURITIES WOULD
NOT RELIEVE YOU OF LIABILITY FOR TAXES AND COULD AFFECT THE TRADING PRICE OF THE
TRUST PREFERRED SECURITIES.
So long as no event of default under the junior subordinated debt
securities has occurred and is continuing, we can, on one or more occasions,
defer interest payments on the junior subordinated debt securities for the
number of consecutive periods specified in the applicable prospectus supplement.
If we defer interest payments on the junior subordinated debt securities, Bank
United Capital Trust will defer distributions on the trust preferred securities
during such deferral period. However, distributions will still accumulate and
such deferred distributions will themselves accrue interest to the extent
permitted by law.
If we defer payments of interest on the junior subordinated debt securities
held by Bank United Capital Trust, you will be required to recognize interest
income for U.S. federal income tax purposes based on your proportionate share of
the interest on those junior subordinated debt securities before you receive any
cash relating to such interest. In addition, you will not receive such cash from
the trust if you sell the trust preferred securities before the end of any
deferral period or before the record date relating to distributions that are
paid.
We have no current intention of deferring interest payments on the junior
subordinated debt securities and believe that deferral is a remote possibility.
However, if we exercise our right to defer in the future, the trust preferred
securities may trade at a price that does not fully reflect the value of accrued
but unpaid interest on the junior subordinated debt securities. If you sell the
trust preferred securities during an interest deferral period, you may not
receive the same return on your investment as someone who continues to hold the
trust preferred securities.
Even if we do not exercise our right to defer interest payments on the
junior subordinated debt securities, our right to do so may make the market
price for the trust preferred securities more volatile than that of other
securities without this feature.
The prospectus supplement with respect to the trust preferred securities
will describe relevant U.S. federal income tax considerations applicable to the
purchase, holding and disposition of the trust preferred securities.
WE MAY REDEEM YOUR TRUST PREFERRED SECURITIES AT ANY TIME IF SPECIFIED CHANGES
IN TAX, INVESTMENT COMPANY OR BANK REGULATORY LAW OCCUR.
If any of the changes in tax, investment company or bank regulatory law
described in this prospectus occur and are continuing, and certain other
conditions are satisfied, we will have the right to redeem the junior
subordinated debt securities within 90 days of the event whether or not we could
otherwise have redeemed the junior subordinated debt securities at that time.
Any redemption will cause a mandatory redemption of trust preferred securities
having a total liquidation amount equal to the total principal amount of junior
subordinated debt securities to be redeemed. Prior to any such
2
<PAGE>
redemption, we will obtain any required regulatory approvals. See "Description
of the Offered Securities -- Trust Preferred Securities -- Distribution of the
Junior Subordinated Debt Securities" and "-- Special Event Redemption."
HOLDERS OF THE TRUST PREFERRED SECURITIES WILL HAVE LIMITED VOTING RIGHTS.
You will have very limited voting rights if you own or hold trust preferred
securities. Among other things, we will have the power to elect or remove any of
the trustees of Bank United Capital Trust unless an event of default under the
junior subordinated debt securities has occurred and is continuing. See "Trust
Preferred Securities -- Voting Rights; Amendment of Declaration."
WE MAY TERMINATE BANK UNITED CAPITAL TRUST AT ANY TIME.
Subject to obtaining any required regulatory approval, we have the right to
terminate Bank United Capital Trust at any time. If we decide to exercise our
right to terminate Bank United Capital Trust, Bank United Capital Trust will
redeem its trust securities by distributing the junior subordinated debt
securities to holders of the trust securities on a proportionate basis.
Under current U.S. federal income tax law, a distribution of junior
subordinated debt securities to you upon the dissolution of Bank United Capital
Trust should not be a taxable event to you. However, if Bank United Capital
Trust is characterized for U.S. federal income tax purposes as an association
taxable as a corporation at the time it is dissolved or if there is a change in
law, the distribution of junior subordinated debt securities to you may be a
taxable event to you.
We have no current intention of terminating Bank United Capital Trust and
distributing junior subordinated debt securities to the holders of its trust
preferred securities. We anticipate that we would consider exercising this right
in the event that expenses associated with maintaining Bank United Capital Trust
were substantially greater than currently expected, such as if certain changes
in tax, investment company or bank regulatory law occurred. We cannot predict
the other circumstances under which we would exercise this right.
THE TRUST PREFERRED SECURITIES ARE A NEW SECURITY WITH NO PRIOR MARKET.
Prior to this offering there has been no public market for the trust
preferred securities, and we cannot assure you that such a market will develop.
The trust preferred securities may not be listed on any securities exchange. The
underwriters may make a market in the trust preferred securities after the
consummation of this offering, as permitted by applicable laws and regulations;
however, the underwriters are not obligated to do so, and may discontinue any
such market making activities at any time without notice. If a trading market
for the trust preferred securities does develop, the trust preferred securities
may trade at a discount from their initial offering price depending on
prevailing interest rates, the market for similar securities, our performance
and other factors.
THERE MAY BE NO TRADING MARKET FOR THE JUNIOR SUBORDINATED DEBT SECURITIES.
Although we will use our best efforts to list the junior subordinated debt
securities on the exchange, if any, on which the trust preferred securities are
then listed if they are distributed, we cannot assure you that the junior
subordinated debt securities will be approved for listing on such exchange or
that a trading market will exist for those securities.
3
<PAGE>
USE OF PROCEEDS
Unless we have indicated otherwise in the applicable prospectus supplement,
we expect to use the net proceeds we receive from any offering of these
securities for our general corporate purposes. Bank United Capital Trust will
use the net proceeds from the sale of its trust preferred securities to purchase
junior subordinated securities from us.
We will not receive any of the proceeds from any sale of Class A common
stock by any of the selling stockholders made by this prospectus. See "Selling
Stockholders."
RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
Our ratios of earnings to fixed charges, which are computed on the basis of
the total enterprise (as defined by the Securities and Exchange Commission) by
dividing earnings before fixed charges and income taxes by fixed charges, are
shown below for the periods indicated. Also shown below are our ratios of
earnings to combined fixed charges and preferred stock dividends, which are
computed on the basis of the total enterprise by dividing earnings before fixed
charges and income taxes by fixed charges and preferred stock dividend
requirements, for the periods indicated. Fixed charges consist principally of
interest expense on all long- and short-term borrowings, excluding or including
interest on deposits as indicated.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31, YEAR ENDED SEPTEMBER 30,
-------------------- -----------------------------------------------------
1998 1997 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES:
Excluding interest expense on
deposits......................... 1.59 1.47 1.50 1.54 1.21 1.30 1.72
Including interest expense on
deposits......................... 1.32 1.26 1.26 1.29 1.11 1.16 1.26
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED DIVIDENDS:
Excluding interest expense on
deposits......................... 1.46 1.35 1.37 1.40 1.10 1.23 1.54
Including interest expense on
deposits......................... 1.26 1.20 1.20 1.22 1.06 1.13 1.21
</TABLE>
4
<PAGE>
BANK UNITED CORP.
We are a broad-based financial services provider to consumers and
businesses in Texas and selected regional markets throughout the United States.
At December 31, 1998, we operated a 90-branch community banking network serving
nearly 262,000 households, as well as 19 commercial banking offices in 16 states
across the country. As of December 31, 1998, we were the largest publicly traded
financial institution headquartered in Texas, with $14.8 billion in assets, $6.3
billion in deposits, and $706.1 million in stockholders' equity. Our address is
3200 Southwest Freeway, Suite 2600, Houston, Texas 77027 and our telephone
number is (713) 543-6500.
We were incorporated in Delaware on December 19, 1988 as USAT Holdings Inc.
and became the holding company for Bank United (the "Bank") upon its 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, which
is administered by the FDIC. In December 1996, we formed a wholly owned,
Delaware subsidiary, BNKU Holdings, Inc., which is now the direct parent company
of the Bank.
The Bank's capital levels at December 31, 1998 and September 30, 1998
qualified it as "well-capitalized," the highest of five categories under
applicable regulatory definitions. The Bank's capital ratios at December 31,
1998 and September 30, 1998, and the applicable regulatory capital requirements,
were as follows:
<TABLE>
<CAPTION>
DECEMBER 31, SEPTEMBER 30, CAPITAL ADEQUACY WELL-CAPITALIZED
1998 1998 REQUIREMENT REQUIREMENT
-------------- --------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Tangible capital..................... 6.52% 6.75% 1.50% --
Core/leverage capital................ 6.54% 6.77% 3.00% 5.00%
Tier 1 capital....................... 9.85% 9.97% -- 6.00%
Total risk-based capital............. 10.39% 10.48% 8.00% 10.00%
</TABLE>
5
<PAGE>
BANK UNITED CAPITAL TRUST
Bank United Capital Trust is a statutory business trust newly formed under
Delaware law by (1) a declaration of trust executed by us, as sponsor for the
trust, and by the trustees for the trust, and (2) the filing of a certificate of
trust with the Delaware Secretary of State. The declaration will be amended and
restated in its entirety substantially in the form filed as an exhibit to the
registration statement of which this prospectus forms a part, as of the date
securities of Bank United Capital Trust are initially issued. The amended
declaration will be qualified as an indenture under the Trust Indenture Act of
1939.
Bank United Capital Trust exists for the exclusive purposes of (1) issuing
two classes of trust securities, trust preferred securities and trust common
securities, which together represent undivided beneficial interests in the
assets of Bank United Capital Trust; (2) investing the gross proceeds of the
trust securities in our junior subordinated debt securities; and (3) engaging in
only those other activities necessary or incidental thereto.
We will directly or indirectly own all of the trust common securities. The
trust common securities will rank equally in right of payment, and payments will
be made thereon proportionately, with the trust preferred securities except that
upon the occurrence and during the continuance of an event of default under the
amended declaration, the rights of the holders of the trust common securities to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the trust
preferred securities. We will acquire, directly or indirectly, trust common
securities in a total liquidation amount equal to 3% of the total capital of
Bank United Capital Trust.
Bank United Capital Trust has a term of approximately 55 years, but may
terminate earlier as provided in its amended declaration. The business and
affairs of Bank United Capital Trust will be conducted by its trustees, who will
initially be appointed by us, as the direct or indirect holder of all the trust
common securities. We, as the direct or indirect holder of all of the trust
common securities of Bank United Capital Trust, will also be entitled to
appoint, remove or replace the Bank United Capital Trust trustees, unless an
event of default in respect of our junior subordinated debt securities held by
Bank United Capital Trust has occurred and is continuing.
The duties and obligations of the Bank United Capital Trust trustees will
be governed by the amended declaration. A majority of the Bank United Capital
Trust trustees (the "Regular Trustees") will be persons who are our employees,
officers, or affiliates.
One Bank United Capital Trust trustee will be a financial institution
unaffiliated with us and that will act as property trustee and as indenture
trustee for purposes of the Trust Indenture Act, under the terms set forth in a
prospectus supplement (the "Property Trustee"). The Property Trustee will hold
title to the junior subordinated debt securities for the benefit of the holders
of the trust securities of Bank United Capital Trust. As holder of the junior
subordinated securities the Property Trustee will have the power to exercise all
rights, powers and privileges under the indenture related to the junior
subordinated debt securities. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of the junior
subordinated debt securities held by it for the benefit of the holders of the
trust preferred securities of Bank United Capital Trust. The Property Trustee
will make payments of distributions and payments on liquidation, redemption and
otherwise to the Property Account. Unless the Property Trustee maintains a
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, one Bank United Capital Trust trustee will have
its principal place of business or reside in the State of Delaware (the
"Delaware Trustee"). In limited circumstances that will be set forth in a
prospectus supplement relating to trust preferred securities, the holders of a
majority of the trust preferred securities will be entitled to appoint or remove
the Property Trustee or the Delaware Trustee.
6
<PAGE>
The rights of the holders of the trust securities, including economic
rights, rights to information and voting rights, are set forth in the amended
declaration, the Delaware Business Trust Act and the Trust Indenture Act. We
will pay all fees and expenses related to Bank United Capital Trust and the
offering of trust securities, the payment of which will be guaranteed by us. The
office of the Delaware Trustee for Bank United Capital Trust in the State of
Delaware is The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711. The principal place of business of Bank United Capital
Trust will be c/o Bank United Corp., 3200 Southwest Freeway, Suite 2600,
Houston, Texas 77027 and its telephone number is (713) 543-6500.
7
<PAGE>
DESCRIPTION OF OFFERED SECURITIES
If so indicated in the applicable prospectus supplement, the terms of any
securities may differ from the terms set forth below.
CLASS A COMMON STOCK
As of April 7, 1999, we had 28,321,576 shares of Class A common stock
issued and outstanding and 7,144,340 shares reserved for issuance under our
stock option plans and upon conversion of our Class B common stock. The material
provisions relating to our Class A common stock can be found in our certificate
of incorporation and by-laws, copies of which have been filed with the
Commission. See "Where You Can Find More Information."
PREFERRED STOCK
The following is a summary of the principal terms of our preferred stock.
This summary is not complete, may not contain all the information that is
important to you and is qualified in its entirety by the provisions of our
certificate of incorporation and by-laws, copies of which have been filed with
the Commission. See "Where You Can Find More Information."
Our Board of Directors is authorized by our certificate of incorporation to
provide, without further stockholder action, for the issuance of one or more
series of preferred stock. Our Board of Directors has the power to fix various
terms with respect to each series, including voting powers, designations,
preferences and relative, participating, optional or other special rights,
qualifications, limitations, restrictions and redemption, conversion or
exchangeability provisions.
The applicable prospectus supplement will set forth the following principal
terms of the series of preferred stock offered thereby:
o the designation, number of shares and liquidation preference per
share;
o initial public offering price;
o the dividend rate or rates;
o the index, if any, upon which the amount of dividends, if any, is
determined;
o the dates on which dividends, if any, will accrue and be payable
and the designated record dates for determining the holders
entitled to such dividends;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o provisions for issuance of global securities;
o the securities exchange, if any, on which the preferred stock will
be listed;
o the currency, which may be composite currency, in which payment of
dividends, if any, will be payable if other than U.S. dollars;
o voting rights; and
o any additional terms, preferences or rights.
Under regulations adopted by the Office of Thrift Supervision, if the
holders of shares of any series of our preferred stock become entitled to vote
for the election of directors because our Board of Directors has failed to
declare or pay dividends on such series, such series may then be deemed a class
of "voting securities." In that case, an institutional holder of 25% or more
of such series, or an institutional holder of five percent or more if it
otherwise exercises a "controlling influence" over us, may then be subject to
regulation as a savings and loan holding company in accordance with the Home
Owner's Loan Act. In addition, if and when a series is deemed a class of voting
securities, any other savings and loan holding company may be required to obtain
the prior approval of the OTS to acquire five percent or more of such series,
and any person other than a savings and loan holding
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company may be required to obtain the prior approval of the OTS to acquire ten
percent or more of such series.
The shares of preferred stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights to subscribe for any additional
securities that we may issue. Unless otherwise specified in the applicable
prospectus supplement, the preferred stock will rank on a parity in all respects
with any outstanding preferred stock we may have and prior to our common stock
as to dividends and distributions of assets. Therefore, the rights of any
preferred stock that may subsequently be issued may limit the rights of the
holders of our common stock and preferred stock.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for each series of preferred stock will be specified in the applicable
prospectus supplement.
Because we are a holding company, our rights and the rights of our
creditors and our stockholders, including the holders of any shares of preferred
stock, to participate in any distribution of assets of any subsidiary upon the
subsidiary's liquidation or recapitalization will be subject to the prior claims
of the subsidiary's creditors, except to the extent that we may be a creditor
with recognized claims against the subsidiary.
The principal source of our revenues is dividends received from the Bank.
Various statutory provisions limit the amount of dividends the Bank and our
nonbank subsidiaries can pay without regulatory approval, and various
regulations can also restrict the payment of dividends. Changes in regulations
could further limit the ability of the Bank to pay dividends to us, and federal
statutes limit the ability of subsidiary banks to make loans to us.
DIVIDENDS. The holders of each series of our preferred stock will be
entitled to receive, when, as and if declared by our Board of Directors, out of
funds legally available for that purpose, cumulative or non-cumulative cash or
other dividends. We will describe the rate or rates and payment dates applicable
to each series of preferred stock in the applicable prospectus supplement. Such
rates may be fixed or variable or both. If variable, we will describe the
formula used for determining the dividend rate for each dividend period in the
applicable prospectus supplement. We will pay dividends to the holders of record
as they appear on our stock books on the record dates set by our Board of
Directors and specified in the applicable prospectus supplement. If our Board of
Directors fails to declare a dividend payable on a dividend payment date on any
series of the preferred stock for which dividends are noncumulative, then the
holders of these noncumulative series of the preferred stock will have no right
to receive a dividend in respect of the dividend period ending on such dividend
payment date, and we will have no obligation to pay a dividend for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates.
Unless otherwise indicated in the applicable prospectus supplement:
o we may not declare dividends on any other series or class of
preferred stock ranking on a parity as to dividends unless full
cumulative dividends on all outstanding shares of each series of
cumulative preferred stock have been paid in full or
contemporaneously are declared and paid through the most recent
dividend payment date; and
o in the event that full cumulative dividends on such preferred stock
have not been declared and paid or set apart when due, we may not
declare or pay any dividends or other distributions on any other
shares of our stock ranking junior to the preferred stock, unless
full cumulative dividends on such preferred stock are made or set
apart for payment; but
o we may, however, pay dividends or distributions in shares of common
stock, or using options, warrants or rights to subscribe for or
purchase shares of common stock or other junior ranking stock.
REDEMPTION. The shares of any series of our preferred stock may be
redeemable at our option and may be subject to mandatory redemption under a
sinking fund or otherwise, in each case upon the
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terms, on the date or dates and at the redemption price or prices set forth in
the applicable prospectus supplement. If fewer than all shares of preferred
stock are to be redeemed, the shares to be redeemed will be selected by us
proportionately, by lot or by any other method determined by the Board of
Directors to be equitable.
If we have not paid any dividends on shares of any series of preferred
stock when due:
o we may not redeem shares of common stock or shares of capital stock
ranking junior to or on parity with the preferred stock;
o we may not redeem shares of such series of preferred stock unless
we simultaneously redeem all outstanding shares of such series; and
o we may not purchase or otherwise acquire any shares of such series;
but
o we may, however, purchase or acquire shares of such series under a
purchase or exchange offer made on the same terms to holders of all
shares of such series.
Any notice of redemption will be given by mailing the notice to each record
holder of the shares to be redeemed, not less than 40 days nor more than 70 days
prior to the redemption date, to the addresses of such holders as they appear on
our stock books. Each notice will state:
o the redemption date;
o the number of shares and series of preferred stock that we will
redeem;
o the redemption price and the manner in which we will pay and
deliver the redemption price;
o the place or places where holders must surrender certificates for
the shares of preferred stock to be redeemed in exchange for
payment of the redemption price;
o that dividends on the shares of preferred stock to be redeemed will
cease to accrue on such redemption date; and
o if we are redeeming fewer than all shares of any series of
preferred stock held by any holder, the number of shares that we
will redeem.
If we have given notice of redemption, unless we have defaulted in
providing the requisite funds to redeem the shares we call for redemption, from
and after the redemption date for the shares of the series of the preferred
stock we call for redemption:
o dividends on the shares of preferred stock called for redemption
will cease to accrue;
o any right to convert the shares of preferred stock of such series
will terminate;
o shares of preferred stock of such series will no longer be deemed
to be outstanding; and
o rights of the holders of the shares of preferred stock of such
series as our stockholders, except the right to receive the
redemption price, will cease.
Once holders surrender certificates in accordance with the redemption
notice, we will provide funds to pay, and will cause to be paid, the redemption
price indicated in the notice. Any shares so redeemed must be properly endorsed
or assigned for transfer, if our Board of Directors so requires and the
redemption notice so states. If fewer than all of the shares represented by any
such certificate are redeemed, a new certificate will be issued representing the
unredeemed shares without cost to the holder thereof.
LIQUIDATION PREFERENCE. Upon our liquidation, dissolution or winding up,
the holders of shares of each series of our preferred stock will be entitled to
receive, out of our assets available for distribution to stockholders and before
any distribution of assets is made to or set apart for the holders of common
stock or any other shares of our stock ranking junior as to such a distribution
to the shares of such preferred series, an amount described in the applicable
prospectus supplement. If, upon our liquidation, dissolution or winding up, our
assets or the proceeds thereof are insufficient to pay in
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full the amounts payable with respect to shares of each series of preferred
stock and any other shares of our stock ranking on a parity, as to any such
distribution with that series of preferred stock, the holders of shares of that
series of preferred stock and the other parity shares will share ratably in the
distribution of our assets in proportion to the full respective preferential
amounts to which they are entitled. After payment to the holders of shares of
that series of preferred stock of the full preferential amounts to which they
are entitled, those holders will not be entitled to any further participation in
any distribution of assets by us, unless otherwise provided in the applicable
prospectus supplement. A consolidation or merger between us and one or more
corporations is not, for this purpose, a liquidation, dissolution or winding up.
The terms, if any, on which shares of any series of preferred stock are
convertible into or exchangeable for debt securities or common stock will be set
forth in the applicable prospectus supplement. These terms may include
provisions for conversion or exchange, either mandatorily, at the option of the
holder or at our option, in which the number of shares of common stock to be
received by the holders of preferred stock would be calculated according to the
market price of common stock as of a time stated in the applicable prospectus
supplement.
DEPOSITARY SHARES
We may elect to offer fractional interests in shares of our preferred
stock, rather than full shares of preferred stock. In that case, we will cause a
bank or trust company we select, with its principal executive office in the
United States and a combined capital and surplus of at least $50,000,000 (a
"Depositary"), to issue to the public receipts (the "Depositary Receipts")
evidencing one or more fractional interests in a share of preferred stock we
deposit with the Depositary (the "Depositary Shares"). Each Depositary Share
will represent a fraction of a share of a particular series of preferred stock
as described below and detailed in the prospectus supplement relating to a
particular series of the preferred stock and the series of Depositary Shares
issued in respect thereof. The shares of any series of preferred stock
underlying the Depositary Shares will be deposited with a Depositary under a
separate deposit agreement (the "Deposit Agreement") between us and a
Depositary which may serve as a Depositary for more than one series of
Depositary Shares.
The following is a summary of the principal terms of the Depositary Shares
and the Deposit Agreement. This summary is not complete, may not contain all of
the information that is important to you and is qualified in its entirety by
reference to the Deposit Agreement and Depositary Receipts relating to each
series of preferred stock. We have filed the forms of Deposit Agreement and
Depositary Receipt as exhibits to the registration statement of which this
prospectus forms a part. Please review those documents for further details not
described in the summary below.
The applicable prospectus supplement relating to a series of Depositary
Shares will set forth the name and address of the principal executive office of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of preferred stock represented by such Depositary Share, to all the rights
and preferences of the preferred stock represented by such Depositary Share,
including dividend, voting, redemption, conversion and liquidation rights.
We may order the Depositary to issue temporary Depositary Receipts to
holders in the event the definitive Depositary Receipts are not ready at the
time of distribution. The temporary Depositary Receipts will be substantially
identical to, and will entitle holders to all the rights pertaining to, the
definitive Depositary Receipts. We will then have definitive Depositary Receipts
prepared without unreasonable delay. Holders will be able to exchange temporary
Depositary Receipts for definitive Depositary Receipts at our expense.
Holders of Depositary Shares may surrender Depositary Receipts to the
Depositary (unless we have previously called for redemption of the related
Depositary Shares) and receive the number of whole shares of the related series
of preferred stock and any money or other property represented by those
Depositary Receipts. Holders will be entitled to receive whole shares of
preferred stock on the
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basis described in the applicable prospectus supplement. After surrender of
Depositary Receipts, holders will not be entitled to deposit under the Deposit
Agreement the shares of preferred stock received or to receive Depositary
Receipts for such shares of preferred stock. If the Depositary Receipts
delivered by the holder evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole shares of preferred
stock to be withdrawn, the Depositary will deliver to such holder at the same
time a new Depositary Receipt evidencing such excess number of Depositary
Shares.
We do not expect that there will be any public trading market for the
preferred stock represented by Depositary Receipts except as represented by the
Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute all cash
dividends or other cash distributions received from us in respect of the
underlying shares of preferred stock to the record holders of Depositary Shares
relating to such preferred stock in proportion to the number of such Depositary
Shares owned by such holders on the relevant record date. The Depositary will
distribute only the amount, however, that it can distribute without attributing
to any holder of Depositary Shares a fraction of one cent, and any balance it
does not distribute will be added to and treated as part of the next amount it
receives for distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received from us to the record holders of Depositary Shares
entitled to the distribution. If the Depositary determines that it is not
feasible to make such distribution, it may, with our approval, sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner
in which the Depositary will make available to holders of Depositary Shares any
subscription or similar rights offered by us to holders of the series of
preferred stock underlying such Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES. If we decide to redeem a series of the
preferred stock represented by Depositary Shares, the Depositary will redeem the
Depositary Shares from the proceeds received by it resulting from the redemption
of the underlying preferred stock. The Depositary will mail a notice of
redemption not less than 30 and not more than 60 days prior to the redemption
date to the addresses of the record holders of the Depositary Shares as they
appear in the Depositary's books. The redemption price per Depositary Share will
equal the applicable fraction of the redemption price per share payable with
respect to such series of the preferred stock. Whenever we redeem preferred
stock held by the Depositary, the Depositary will redeem as of the same
redemption date the number of Depositary Shares representing the shares of
preferred stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary will select the Depositary Shares to be redeemed,
either proportionately or by lot.
After the redemption date, the Depositary Shares called for redemption will
no longer be deemed to be outstanding and all rights of the holders of the
Depositary Shares will cease, except the right to receive the monies payable
upon such redemption and any money or other property to which the holders of
such Depositary Shares were entitled upon such redemption upon surrender to the
Depositary of the Depositary Receipts evidencing such Depositary Shares.
VOTING THE UNDERLYING PREFERRED STOCK. We will send to the Depositary all
notices of meetings at which the holders of shares of the series of preferred
stock held by the Depositary are entitled to vote. The Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to that series of preferred stock. Each record holder
of such Depositary Shares on the record date may instruct the Depositary how to
vote with respect to the number of shares of preferred stock represented by such
holder's Depositary Shares. The record date for Depositary Shares will be the
same date as the record date for the preferred stock. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of preferred
stock underlying such Depositary Shares in accordance with such instructions. We
will agree to take all actions deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain
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from voting shares of preferred stock for which it has not received specific
instructions from the holders of Depositary Shares representing such preferred
stock.
TAXATION. The IRS will treat owners of Depositary Shares as if they were
owners of the preferred stock represented by such Depositary Shares, and,
accordingly, owners will be entitled to take into account for federal income tax
purposes, income and deductions to which they would be entitled if they were
holders of such preferred stock. In addition:
o owners will not recognize gain or loss for federal income tax
purposes upon the withdrawal of preferred stock in exchange for
Depositary Shares as provided in the Deposit Agreement;
o the tax basis of each share of preferred stock to an exchanging
owner of Depositary Shares will, upon the exchange, be the same as
the total tax basis of the Depositary Shares exchanged; and
o the holding period for the preferred stock in the hands of an
exchanging owner of Depositary Shares will include the period
during which such person owned such Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT. We and the
Depositary may at any time amend the form of Depositary Receipts evidencing the
Depositary Shares and any provision of the Deposit Agreement. However, we may
not make any amendment that materially and adversely alters the rights of the
existing holders of Depositary Shares unless the record holders of at least a
majority of the Depositary Shares then outstanding approve the amendment. We or
the Depositary may terminate a Deposit Agreement only if:
o we have redeemed all Depositary Shares outstanding under the
Deposit Agreement; or
o there has been a final distribution in respect of the series of
preferred stock underlying the Depositary Shares in connection with
our liquidation, dissolution or winding up, and such distribution
has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangements. We will also pay charges of the Depositary in connection with the
initial deposit of the underlying shares of preferred stock and any redemption
of the preferred stock. Holders of Depositary Shares must pay other transfer and
other taxes and governmental charges and such other charges that the Deposit
Agreement requires them to pay.
MISCELLANEOUS. We will provide to the Depositary, and the Depositary will
forward to the holders of Depositary Shares, all reports and communications from
us that we are required to furnish to the holders of the underlying preferred
stock.
Neither we nor the Depositary will be liable if we are or it is prevented
or delayed by law or any circumstance beyond our control in performing our
obligations under the Deposit Agreement. Our obligations and the Depositary's
obligations under the Deposit Agreement are limited to performance in good faith
of our and their respective duties under the Deposit Agreement. In addition,
neither we nor the Depositary will be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or shares of underlying preferred
stock unless satisfactory indemnity is furnished. We and the Depositary may rely
upon written advice of counsel or accountants, or information provided by
persons presenting preferred stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to us notice of its election to do so. We may also at any
time remove the Depositary. Any such resignation or removal will take effect
upon our appointment of a successor Depositary and its acceptance of such
appointment. We must appoint a successor Depositary within 60 days after
delivery of any notice of resignation by, or removal, of the Depositary. The
successor Depositary must be a
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bank or trust company with its principal office in the United States and having
a combined capital and surplus of at least $50,000,000.
JUNIOR SUBORDINATED DEBT SECURITIES
The following is a summary of the principal terms of the junior
subordinated debt preferred securities in which Bank United Capital Trust will
invest the proceeds from the issuance and sale of the trust securities. This
summary is not complete, may not contain all the information that is important
to you, and is qualified in its entirety by reference to, the junior
subordinated indenture, dated as of [ ], 1999, between us and
[ ], as trustee (the "Indenture Trustee"), the form of which
is filed as an exhibit to the registration statement of which this prospectus
forms a part, as well as to the Trust Indenture Act. Wherever particular
sections or defined terms of the junior subordinated indenture are referred to,
such sections or defined terms are incorporated in this prospectus by reference
as part of the statement made, and the statement is qualified in its entirety by
such reference.
Under certain circumstances involving the dissolution of Bank United
Capital Trust, subject to obtaining any required regulatory approval, junior
subordinated debt securities will be distributed to the holders of the trust
securities in liquidation of Bank United Capital Trust. See "Trust Preferred
Securities -- Special Event Redemption or Distribution."
If the junior subordinated debt securities are distributed to the holders
of the trust preferred securities, we will use our best efforts to have the
junior subordinated debt securities listed on any national securities exchange
or similar organization on which the trust preferred securities are then listed
or quoted.
The junior subordinated indenture will not contain covenants or other
provisions that would afford protection to the holders of the junior
subordinated debt securities in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction involving us that
may adversely affect such holders.
We plan to sell junior subordinated debt securities to Bank United Capital
Trust under this prospectus. The applicable prospectus supplement relating to
the junior subordinated debt securities will set forth the following terms:
o the title;
o any limit on the amount that may be issued;
o whether or not the junior subordinated debt securities will be
issued in global form, and if so, the terms and who the depository
will be;
o the securities exchange, if any, on which the junior subordinated
debt securities will be listed;
o the maturity date(s);
o the annual interest rate(s) (which may be fixed or variable) or the
method for determining the rate(s) and the date(s) interest will
begin to accrue, the date(s) interest will be payable and the
regular record dates for interest payment dates or the method for
determining such date(s);
o the place(s) where payments will be payable;
o our right, if any, to defer payment of interest and the maximum
length of any such deferral period;
o the date, if any, after which, and the price(s) at which, the
junior subordinated debt securities may, under any optional
redemption provisions, be redeemed at our option, and other related
terms and provisions;
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o the date(s), if any, on which, and the price(s) at which we are
obligated, under any mandatory sinking fund provisions or
otherwise, to redeem, or at the holder's option to purchase, the
junior subordinated debt securities and other related terms and
provisions;
o the denominations in which the junior subordinated debt securities
will be issued, if other than denominations of $1000 and any
integral multiple thereof; and
o any other terms, none of which will be inconsistent with the junior
subordinated indenture.
CONVERSION OR EXCHANGE RIGHTS. The terms on which the junior subordinated
debt securities may be convertible into or exchangeable for Class A common stock
or any of our other securities will be set forth in the applicable prospectus
supplement. These terms will include provisions as to whether conversion or
exchange is mandatory, at the option of the holder or at our option, and may
include provisions under which the number of shares of Class A common stock or
other securities to be received by the holders of the junior subordinated debt
securities would be subject to adjustment.
CONSOLIDATION, MERGER OR SALE. The junior subordinated indenture will not
contain any covenant which restricts our ability to merge or consolidate, or
sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. Any successor or acquirer of such assets, however, must assume all of
our obligations under the junior subordinated indenture or the junior
subordinated debt securities, as appropriate.
Pursuant to the junior subordinated indenture, we will agree to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States or any other taxing
authority on Bank United Capital Trust, so that the net amounts received and
retained by Bank United Capital Trust after paying any such taxes, duties,
assessments or other governmental charges will be not less than the amounts Bank
United Capital Trust would have received had no such taxes, duties, assessments
or other governmental charges been imposed.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. We can defer interest payments
by extending the interest payment period for the number of consecutive extension
periods specified in the applicable prospectus supplement (each, an "Extension
Period"). No Extension Period may extend beyond the maturity of the junior
subordinated debt securities. At the end of the Extension Period(s), we will pay
all interest then accrued and unpaid, together with interest thereon compounded
[ ] at the rate specified for the junior subordinated debt
securities to the extent permitted by applicable law. During any such Extension
Period, we will not make distributions related to our capital stock, including
dividends, redemptions, repurchases, liquidation payments, or guarantee
payments. We may, however, make distributions in connection with any of the
following:
o repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of
employees, officers, directors or consultants;
o an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock; or
o the purchase of fractional interests in shares of our capital stock
under the conversion or exchange provisions of such capital stock
or the security being converted or exchanged.
In addition, during any such Extension Period, we will not make distributions
related to our debt securities that rank equally with or junior to the junior
subordinated debt securities, including any payment of interest, principal or
premium, or repayments, repurchases or redemptions. During Extension Periods, we
will, however, be able to pay stock dividends where the dividend stock is the
same stock as that on which the dividend is being paid.
Prior to the termination of any Extension Period, we may further defer
payments of interest by extending such Extension Period. However, an extended
Extension Period, including all such previous and further extensions, may not
extend beyond the maturity of the junior subordinated debt securities.
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Upon the termination of any Extension Period and the payment of all amounts then
due, we may commence a new Extension Period, subject to the terms set forth in
this section. Interest will not be due or payable during an Extension Period,
except at the end of the Extension Period.
We have no present intention of exercising our right to defer payments of
interest by extending the interest payment period on the junior subordinated
debt securities. If the Property Trustee is the sole holder of the junior
subordinated debt securities, we will give the Regular Trustees and the Property
Trustee notice of our selection of such Extension Period one business day prior
to the earlier of:
o the date distributions on the trust preferred securities would be
payable, if not for such Extension Period; and
o the date the Regular Trustees are required to give notice to the
NYSE or other applicable self-regulatory organization, or to
holders of the trust preferred securities, of the record date or
the date such distribution would be payable, if not for such
Extension Period, but in any event one business day prior to the
record date.
The Regular Trustees will give notice of our selection of such Extension
Period to the holders of the trust preferred securities. If the Property Trustee
is not the sole holder of the junior subordinated debt securities, we will give
the holders of the junior subordinated debt securities notice of our selection
of such Extension Period ten business days prior to the earlier of:
o the next succeeding interest payment date; and
o the date upon which we are required to give notice to the NYSE or
other applicable self-regulatory organization, or to holders of the
junior subordinated debt securities, of the record or payment date
of such related interest payment.
As used in this prospectus, the term "business day" means any day other
than Saturday, Sunday or any other day on which banking institutions in New York
City are permitted or required by any applicable law to close.
EVENTS OF DEFAULT UNDER THE JUNIOR SUBORDINATED INDENTURE. The following
are events of default under the junior subordinated indenture with respect to
junior subordinated debt securities that we may issue to Bank United Capital
Trust:
o our failure to pay interest when due and such failure continues for
30 days and the time for payment has not been extended or deferred;
o our failure to pay the principal, or premium, if any, when due;
o our failure to observe or perform any other covenant contained in
the junior subordinated debt securities or the junior subordinated
indenture, and such failure continues for 90 days after we receive
notice from the Indenture Trustee or holders of at least 25% of the
total principal amount of the outstanding junior subordinated debt
securities; and
o our bankruptcy, insolvency or reorganization.
If an event of default with respect to the junior subordinated debt
securities occurs and is continuing, the Indenture Trustee or the holders of at
least 25% of the total principal amount of the outstanding junior subordinated
debt securities, by notice in writing to us (and to the Indenture Trustee if
notice is given by such holders), may declare the unpaid principal of, premium,
if any, and accrued interest, if any, due and payable immediately.
The holders of at least a majority of the total liquidation amount of the
trust preferred securities may waive any default or event of default with
respect to and its consequences, except defaults or events of default regarding:
o payment of principal, premium, if any, or interest; or
o certain covenants containing limitations on our ability to pay
dividends and make payments on debt securities in certain
circumstances.
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Any such waiver will cure such default or event of default.
Subject to the terms of the junior subordinated indenture, if an event of
default under the junior subordinated indenture occurs and is continuing, the
Indenture Trustee will be under no obligation to exercise any of its rights or
powers under the junior subordinated indenture at the request or direction of
any of the holders of the junior subordinated debt securities, unless such
holders have offered reasonable indemnity to the Indenture Trustee. The holders
of at least a majority of the total liquidation amount of the trust preferred
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred on the Indenture Trustee, with respect
to the junior subordinated debt securities, provided that:
o it is not in conflict with any law or the applicable provisions of
the junior subordinated indenture;
o the Indenture Trustee may take any other action deemed proper by it
which is not inconsistent with such direction; but
o subject to its duties under the Trust Indenture Act, the Indenture
Trustee need not take any action that might involve it in personal
liability or might be unduly prejudicial to the holders not
involved in the proceeding.
A holder of the junior subordinated debt securities will only have the
right to institute a proceeding under the junior subordinated indenture or to
appoint a receiver or trustee, or to seek other remedies if:
o the holder has given written notice to the Indenture Trustee of a
continuing event of default;
o the holders of at least 25% of the total principal amount of the
outstanding junior subordinated debt securities have made written
request, and such holders have offered reasonable indemnity to the
Indenture Trustee to institute such proceedings as trustee; and
o the Indenture Trustee does not institute such proceeding, and does
not receive from the holders of a majority of the total principal
amount of the outstanding junior subordinated debt securities other
conflicting directions within 60 days after such notice, request
and offer.
These limitations, however, do not apply to a suit instituted by a holder of
junior subordinated debt securities if we default in the payment of the
principal, premium, if any, or interest on, the junior subordinated debt
securities.
We will periodically file statements with the Indenture Trustee regarding
our compliance with certain of the covenants in the junior subordinated
indenture.
If an Event of Default under the amended declaration has occurred and is
attributable to our failure to pay principal, premium, if any, or interest on,
the junior subordinated debt securities, then each holder of the trust preferred
securities may sue us or seek other remedies to force payment to such holder of
the principal of, premium, if any, or interest on, such junior subordinated debt
securities having a principal amount equal to the total liquidation amount of
the trust preferred securities held by such holder. If you sue us to collect
payment, then we will assume your rights as a holder of trust preferred
securities under the amended declaration to the extent we make a payment to you
in any such legal action. The holders of trust preferred securities will not be
able to exercise directly any other remedy available to the holders of the
junior subordinated debt securities.
CERTAIN COVENANTS. If the junior subordinated debt securities are issued
to Bank United Capital Trust or a trustee of Bank United Capital Trust in
connection with the issuance of trust preferred securities by Bank United
Capital Trust, and
o there has occurred and is continuing an event of default under the
junior subordinated indenture,
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o we are in default with respect to our payment of any obligations
under the trust preferred securities guarantee, or
o we have given notice of our election to defer payments of interest
on the junior subordinated debt securities by extending the
interest payment period as provided in the junior subordinated
indenture and such period, or any extension thereof, is continuing,
then:
o we may not make distributions related to our debt securities that
rank equally with or junior to the junior subordinated debt
securities, including any payment of interest, principal or
premium, or repayments, repurchases or redemptions, and
o may not make distributions related to our capital stock, including
dividends, redemptions, repurchases, liquidation payments, or
guarantee payments, except that we may make distributions in
connection with any of the following:
1) repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or consultants,
2) an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock, or
3) the purchase of fractional interests in shares of our capital
stock under the conversion or exchange provisions of such
capital stock or the security being converted or exchanged.
These prohibitions will not, however, apply to any stock dividends paid by us
where the dividend stock is the same class of stock as that on which the
dividend is being paid.
In addition, as long as the trust preferred securities remain outstanding,
we will covenant:
o to directly or indirectly maintain 100% ownership of the trust
common securities of Bank United Capital Trust; provided, however,
that any permitted successor of ours under the junior subordinated
indenture may succeed to our ownership of such trust common
securities;
o to not voluntarily dissolve, wind-up or terminate Bank United
Capital Trust, except in connection with a distribution of junior
subordinated debt securities as described under "Distribution of
the Junior Subordinated Debt Securities" and in connection with
certain mergers, consolidations or amalgamations permitted by the
amended declaration;
o to timely perform our duties as sponsor of Bank United Capital
Trust; and
o to use reasonable efforts to cause Bank United Capital Trust to
1) remain a statutory business trust, except in connection with
the distribution of junior subordinated debt securities to the
holders of trust preferred securities in the event of the
liquidation of Bank United Capital Trust, the redemption of all
of the trust preferred securities of Bank United Capital Trust,
or certain mergers, consolidations or amalgamations, each as
permitted by the amended declaration, and
2) otherwise continue to be classified as a grantor trust for
U.S. federal income tax purposes.
DISCHARGE AND DEFEASANCE. We may discharge all of our obligations (except
those set forth below) to holders of the junior subordinated debt securities
issued under the junior subordinated indenture, which junior subordinated debt
securities have not already been delivered to the Indenture Trustee for
cancellation and which either have become due and payable or are by their terms
due and payable within one year (or are to be called for redemption within one
year) by depositing with the Indenture Trustee an amount certified to be
sufficient to pay when due the principal of and premium,
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if any, and interest on all outstanding junior subordinated debt securities and
to make any mandatory sinking fund payments thereon when due.
Unless otherwise specified in this prospectus with respect to the junior
subordinated debt securities:
(1) We, at our option, will be discharged from any and all obligations in
respect of the junior subordinated debt securities. However, we will
not be discharged from our obligations:
a) to pay all expenses of Bank United Capital Trust,
b) to register the transfer or exchange of junior subordinated debt
securities,
c) to replace mutilated, defaced, destroyed, lost or stolen junior
subordinated debt securities, and
d) to maintain paying agents and hold monies for payment in trust.
(2) If we deposit with the Indenture Trustee, in trust, money or U.S.
government obligations that through the payment of interest thereon
and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay all the principal of (and
premium, if any) and any interest on the junior subordinated debt
securities on the dates such payments are due (which may include one
or more redemption dates designated by us) in accordance with the
terms of the junior subordinated debt securities, then
a) we, at our option, need not comply with certain covenants
specified in this prospectus with respect to the junior
subordinated debt securities, and
b) the occurrence of an event described in the third clause under
"-- Events of Default Under the Junior Subordinated Indenture"
above with respect to any defeased covenant and any other event
of default provided in the applicable resolution of the Board of
Directors or supplemental indenture under which the junior
subordinated debt securities are issued will no longer be an
event of default.
Such a trust may only be established, if, among other things, the Indenture
Trustee has received an opinion of counsel to the effect that the holders of the
junior subordinated debt securities will not recognize gain or loss for federal
income tax purposes as a result of such deposit or defeasance and will be
subject to federal income tax in the same manner as if such defeasance had not
occurred, which, in the case of a discharge under clause (1) above, must be
based upon a ruling or administrative pronouncement of the IRS. In the event we
fail to comply with our remaining obligations under the junior subordinated
indenture after a defeasance of the junior subordinated indenture with respect
to the junior subordinated debt securities as described under clause (2) above
and the junior subordinated debt securities are declared due and payable because
of the occurrence of any undefeased event of default, the amount of money and
U.S. government obligations on deposit with the Indenture Trustee may be
insufficient to pay amounts due on the junior subordinated debt securities at
the time of the acceleration resulting from such event of default. However, we
will remain liable in respect of such payments.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE; WAIVER. Together with the
Indenture Trustee, we may change the junior subordinated indenture without the
consent of any holders with respect to a number of matters, including:
o to fix any ambiguity, defect or inconsistency in the junior
subordinated indenture; and
o to change anything that does not materially adversely affect the
interests of any holder of junior subordinated debt securities.
In addition, under the junior subordinated indenture, the rights of holders
of the junior subordinated debt securities may be changed by us and the
Indenture Trustee with the written consent of the holders of at least a majority
of the total liquidation amount of the trust preferred securities.
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However, the following changes may only be made with the consent of each holder
of the junior subordinated debt securities:
o extending the fixed maturity of the junior subordinated debt
securities;
o reducing the principal amount, reducing the rate of or extending
the time of payment of interest, or any premium payable upon the
redemption of any such junior subordinated debt securities; or
o reducing the percentage of junior subordinated debt securities, the
holders of which are required to consent to any amendment or waive
our compliance with any covenant or past default.
If the consent of the Property Trustee, as holder of the junior
subordinated debt securities, is required to consent to any amendment,
modification or termination of the junior subordinated indenture, the Property
Trustee will request directions from the holders of the trust preferred
securities.
FORM, EXCHANGE, AND TRANSFER. The junior subordinated debt securities will
be issuable only in fully registered form without coupons and, unless otherwise
specified in the applicable prospectus supplement, in denominations of $1,000
and any integral multiple thereof.
At the option of the holder, subject to the terms of the junior
subordinated indenture and the limitations applicable to global securities
described in the applicable prospectus supplement, junior subordinated debt
securities will be exchangeable for other junior subordinated debt securities,
in any authorized denomination and of like tenor and total principal amount.
Subject to the terms of the junior subordinated indenture and the
limitations applicable to global securities set forth in the applicable
prospectus supplement, junior subordinated debt securities may be presented for
exchange or for registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed if so required by us or the Indenture
Trustee, at the office of the security registrar or at the office of any
transfer agent we designate for such purpose. Unless otherwise provided in the
junior subordinated debt securities to be transferred or exchanged, no service
charge need be made for any registration of transfer or exchange, but we may
require the holder to pay any taxes or other governmental charges. We have
appointed the Indenture Trustee as security registrar. Any transfer agent in
addition to the security registrar initially designated by us for any junior
subordinated debt securities will be named in the applicable prospectus
supplement. We may at any time designate additional transfer agents or rescind
the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the junior subordinated debt
securities.
If the junior subordinated debt securities are to be redeemed, we will not
be required to:
o issue, register the transfer of, or exchange any junior
subordinated debt securities during a period beginning at the
opening of business 15 days before the day of mailing of a notice
of redemption of any such junior subordinated debt securities that
may be selected for redemption and ending at the close of business
on the day of such mailing, or
o register the transfer of or exchange any junior subordinated debt
securities so selected for redemption, in whole or in part, except
the unredeemed portion of any such junior subordinated debt
securities being redeemed in part.
INFORMATION CONCERNING THE JUNIOR SUBORDINATED INDENTURE TRUSTEE. The
Indenture Trustee, other than during the occurrence and continuance of an event
of default under the junior subordinated indenture, undertakes to perform only
such duties as are specifically set forth in the junior subordinated indenture
and, upon an event of default under an junior subordinated indenture, must use
the same degree of care as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the Indenture Trustee is
under no obligation to exercise any of the powers given it by the junior
subordinated indenture at the request of any holder of junior subordinated debt
securities unless it is offered reasonable security and indemnity against the
costs,
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expenses and liabilities that it might incur. The Indenture Trustee is not
required to spend or risk its own money or otherwise become financially liable
while performing its duties unless it reasonably believes that it will be repaid
or receive adequate indemnity.
PAYMENT AND PAYING AGENTS. Unless otherwise indicated in the applicable
prospectus supplement, payment of the interest on any junior subordinated debt
securities on any interest payment date will be made to the person in whose name
such junior subordinated debt securities (or one or more predecessor securities)
are registered at the close of business on the regular record date for such
interest.
Principal of and any premium and interest on the junior subordinated debt
securities will be payable at the office of the paying agents designated by us,
except that, unless otherwise indicated in the applicable prospectus supplement,
interest payments may be made by check mailed to the holder. Unless otherwise
indicated in such prospectus supplement, the corporate trust office of the
Indenture Trustee in The City of New York will be designated as our sole paying
agent for payments with respect to junior subordinated debt securities. We will
be required to maintain a paying agent in each place of payment for the junior
subordinated debt securities.
All monies we pay to a paying agent or the Indenture Trustee for the
payment of the principal of or any premium or interest on any junior
subordinated debt securities which remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us, and the holder of the security thereafter may look only to us for
payment thereof.
SUBORDINATION OF JUNIOR SUBORDINATED DEBT SECURITIES. The junior
subordinated debt securities will be unsecured and will be subordinate and
junior in priority of payment to certain of our other indebtedness to the extent
described in the applicable prospectus supplement. The junior subordinated
indenture does not limit the amount of junior subordinated debt securities which
we may issue, nor does it limit us from issuing any other secured or unsecured
debt.
GLOBAL SECURITIES. The junior subordinated debt securities may be issued
in whole or in part in the form of one or more global securities that will be
deposited with, or on behalf of, a depositary identified in the applicable
prospectus supplement ("Global Securities"). Global Securities will be issued
in registered form and in either temporary or permanent form. Unless and until
it is exchanged for junior subordinated debt securities in definitive form, a
temporary Global Security may not be transferred except as a whole by the
depositary for such Global Security to a nominee of such depositary or any such
nominee to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to the junior
subordinated debt securities will be described in the applicable prospectus
supplement. We anticipate that the following provisions will apply to any
depositary arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security or its nominee will credit the accounts of persons held with it with
the respective principal amounts of the securities represented by such Global
Security. Such accounts will be designated by the underwriters or agents with
respect to such securities or by us if such securities are offered and sold
directly by us. Ownership of beneficial interests in a Global Security will be
limited to participants, who are persons that have accounts with the depositary
for such Global Security or its nominee, or persons that may hold interests
through participants. Ownership of beneficial interests in such Global Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the depositary (with respect to participants'
interests) for such Global Security or by participants or persons that hold
securities through participants (with respect to beneficial owners' interests).
MISCELLANEOUS. The junior subordinated indenture provides that we will pay
all fees and expenses related to:
o the offering of the trust preferred securities and the junior
subordinated debt securities;
o the organization, maintenance and dissolution of Bank United
Capital Trust;
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o the retention of the Bank United Capital Trust trustees; and
o the enforcement by the Property Trustee of the rights of the
holders of the trust preferred securities.
GOVERNING LAW. The junior subordinated indenture and the junior
subordinated debt securities will be governed by and construed in accordance
with the laws of the State of New York except to the extent that the Trust
Indenture Act is applicable.
TRUST PREFERRED SECURITIES
The following is a summary of the principal terms of the trust preferred
securities. This summary is not complete, may not include all the information
that is important to you, and is qualified in its entirety by reference to the
amended declaration, the Delaware Business Trust Act and the Trust Indenture
Act. The terms of the trust preferred securities will include those stated in
the amended declaration and those made part of the amended declaration by the
Trust Indenture Act.
The amended declaration authorizes the Regular Trustees to issue, on behalf
of Bank United Capital Trust, trust preferred securities which will have the
terms described in the applicable prospectus supplement. The proceeds from the
sale of the trust preferred securities will be used by Bank United Capital Trust
to purchase our junior subordinated debt securities. These junior subordinated
debt securities will be held in trust by the Property Trustee for the benefit of
the holders of such trust securities.
We will guarantee the payments of distributions and payments on redemption
or liquidation with respect to the trust preferred securities, but only to the
extent Bank United Capital Trust has funds available to make those payments and
has not made the payments. See "Guarantees."
The assets of Bank United Capital Trust available for distribution to the
holders of trust preferred securities will be limited to payments from us under
the junior subordinated debt securities held by Bank United Capital Trust. If we
fail to make a payment on the junior subordinated debt securities, Bank United
Capital Trust will not have sufficient funds to make related payments, including
distributions, on its trust preferred securities.
The trust preferred securities guarantee, when taken together with our
obligations under the junior subordinated debt securities, the junior
subordinated indenture related thereto and the amended declaration, will provide
a full and unconditional guarantee of amounts due on the trust preferred
securities issued by Bank United Capital Trust.
The trust preferred securities will have the terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as described in the
amended declaration or made part of the amended declaration by the Trust
Indenture Act or the Delaware Business Trust Act. The terms of the trust
preferred securities will mirror the terms of the junior subordinated debt
securities held by Bank United Capital Trust. In other words, the distribution
rate and the distribution payment dates and other payment dates for the trust
preferred securities will correspond to the interest rate and interest payment
dates and other payment dates on the junior subordinated debt securities.
The applicable prospectus supplement will set forth the principal terms of
the trust preferred securities offered thereby, including:
o the name of the trust preferred securities;
o the liquidation amount and number of trust preferred securities
issued;
o the annual distribution rate(s) or method of determining such
rate(s), the payment date(s) and the record dates used to determine
the holders who are to receive distributions;
o the date from which distributions will be cumulative;
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o the optional redemption provisions, if any, including the prices,
time periods and other terms and conditions on which the trust
preferred securities will be purchased or redeemed, in whole or in
part;
o the terms and conditions, if any, upon which the junior
subordinated debt securities and the related trust preferred
securities guarantee may be distributed to holders of such trust
preferred securities;
o any securities exchange on which the trust preferred securities
will be listed;
o whether the trust preferred securities are to be issued in
book-entry form and represented by one or more global certificates,
and if so, the depository for such global certificates and the
specific terms of the depositary arrangements; and
o any other relevant rights, preferences, privileges, limitations or
restrictions of the trust preferred securities.
The applicable prospectus supplement will also describe certain U.S. federal
income tax considerations applicable to the purchase, holding and disposition of
such trust preferred securities.
EXTENSIONS. We have the right under the junior subordinated indenture to
defer payments of interest on the junior subordinated debt securities by
extending the interest payment period from time to time on the junior
subordinated debt securities. The Regular Trustees will give the holders of the
trust preferred securities notice of any Extension Period upon their receipt of
notice thereof from us. If distributions are deferred, the deferred
distributions and accrued interest thereon will be paid to holders of record of
the trust preferred securities as they appear on the books and records of Bank
United Capital Trust on the record date next following the termination of such
deferral period. See "Description of the Junior Subordinated Debt
Securities -- Interest" and "-- Option to Extend Interest Payment Period."
Distributions on the trust preferred securities will be made on the dates
payable to the extent that Bank United Capital Trust has funds available for the
payment of distributions in the Property Account. Bank United Capital Trust's
funds available for distribution to the holders of the trust preferred
securities will be limited to payments received from us on the junior
subordinated debt securities. The payment of distributions out of monies held by
Bank United Capital Trust is guaranteed by us to the extent set forth under
"-- Guarantees."
Distributions on the trust preferred securities will be payable to the
holders named on the securities register of Bank United Capital Trust at the
close of business on the relevant record dates, which, as long as the trust
preferred securities remain in book-entry only form, will be one business day
prior to the relevant payment dates. Distributions will be paid through the
Property Trustee who will hold amounts received in respect of the junior
subordinated debt securities in the Property Account for the benefit of the
holders of the trust securities. In the event that the trust preferred
securities do not continue to remain in book-entry only form, the relevant
record dates will conform to the rules of any securities exchange on which the
trust preferred securities are listed and, if none, the Regular Trustees will
have the right to select relevant record dates, which will be more than 14 days
but less than 60 days prior to the relevant payment dates. In the event that any
date on which distributions are to be made on the trust preferred securities is
not a business day, then payment of the distributions payable on such date will
be made on the next succeeding day which is a business day (and without any
interest or other payment in respect of any such delay), except that, if such
business day is in the next succeeding calendar year, such payment will be made
on the immediately preceding business day, in each case with the same force and
effect as if made on such record date.
MANDATORY REDEMPTION OF TRUST PREFERRED SECURITIES. The trust preferred
securities have no stated maturity date, but will be redeemed upon the maturity
of the junior subordinated debt securities or to the extent such junior
subordinated debt securities are redeemed prior to maturity. The junior
subordinated debt securities will mature on the date set forth in the applicable
prospectus supplement, and may be redeemed at any time, in whole but not in
part, in certain circumstances upon the
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occurrence of a Tax Event, an Investment Company Event or a Regulatory Capital
Event as described under "-- Special Event Redemption."
Upon the maturity of the junior subordinated debt securities, the proceeds
of the repayment thereof will simultaneously be applied to redeem all of the
outstanding trust preferred securities at the Redemption Price. Upon the
redemption of the junior subordinated debt securities, either at our option or
as a result of a Tax Event, an Investment Company Event or a Regulatory Capital
Event, the proceeds from such redemption will simultaneously be applied to
redeem trust securities having a total liquidation amount equal to the total
principal amount of the junior subordinated debt securities so redeemed at the
redemption price; provided, that holders of trust securities will be given not
less than 30 nor more than 60 days' notice of such redemption. In the event that
fewer than all of the outstanding trust preferred securities are to be redeemed,
the trust preferred securities will be redeemed proportionately.
SPECIAL EVENT REDEMPTION. Subject to obtaining any required regulatory
approval, if a Tax Event, an Investment Company Event or a Regulatory Capital
Event (each, a "Special Event") occurs and is continuing, we will have the
right, upon not less than 30 nor more than 60 days' notice, to redeem the junior
subordinated debt securities, in whole but not in part, for cash within 90 days
following the occurrence of such Special Event. Following such redemption, Bank
United Capital Trust will use the proceeds to redeem all of the outstanding
trust preferred securities. However, if at the time there is available to us or
Bank United Capital Trust the opportunity to eliminate, within such 90-day
period, the Special Event by taking some ministerial action, such as filing a
form or making an election or pursuing some other similar reasonable measure
that will have no adverse effect on us, Bank United Capital Trust, or the
holders of the trust securities, then we or Bank United Capital Trust will
pursue such measure in lieu of redemption.
The following events constitute Special Events for purposes of the
redemption provisions set forth in the preceding paragraph.
o "TAX EVENT" means that the Regular Trustees have received an
opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result (in
either case, after the date of this prospectus) of:
1) any amendment to, change or announced prospective change in,
the laws or regulations of the United States or any of its
political subdivisions or taxing authorities, or
2) any amendment to or change in an interpretation or application
of such laws or regulations by any legislative body, court,
governmental agency or regulatory authority (including the
enactment of any legislation and the publication of any
judicial decision or official administrative pronouncement on
or after the date of this prospectus),
there is more than an insubstantial risk that:
a) Bank United Capital Trust is or within 90 days would be
subject to U.S. federal income tax with respect to income
accrued or received on the junior subordinated debt
securities,
b) interest payable to Bank United Capital Trust on the
junior subordinated debt securities is not or within
90 days would not be deductible, in whole or in part,
by us for U.S. federal income tax purposes, or
c) Bank United Capital Trust is or within 90 days would be
subject to a material amount of other taxes, duties or
other governmental charges.
o "INVESTMENT COMPANY EVENT" means that the Regular Trustees have
received an opinion of a nationally recognized independent counsel
experienced in practicing under the Investment Company Act of 1940
to the effect that, as a result of an amendment to
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or change in the Investment Company Act or regulations thereunder
on or after the date of this prospectus, there is more than an
insubstantial risk that Bank United Capital Trust is or will be
considered an "investment company" and be required to be
registered under the Investment Company Act.
o "REGULATORY CAPITAL EVENT" means that we have received an opinion
of independent bank regulatory counsel experienced in such matters
to the effect that, as a result of
1) any amendment to or change (including any announced prospective
change) in the laws or any regulations thereunder of the United
States or any rules, guidelines or policies of the applicable
regulatory authorities having jurisdictions over us, or
2) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations
which in either case is announced or becomes effective after the
date of original issuance of the trust preferred securities, the
trust preferred securities do not constitute, or within 90 days
of the date of such event would not constitute, Tier 1 capital or
its then equivalent applied as if we were a bank holding company
(as that concept is used in the guidelines or regulations issued
by the Board of Governors of the Federal Reserve System).
However, the distribution of junior subordinated debt securities
by Bank United Capital Trust in connection with its liquidation
will not, in and of itself, be a "Regulatory Capital Event"
unless such liquidation occurs in connection with a Tax Event or
an Investment Company Event.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES. We will have the
right at any time to dissolve Bank United Capital Trust and, after satisfaction
of the liabilities of creditors of Bank United Capital Trust as provided by
applicable law, to cause junior subordinated debt securities to be distributed
to the holders of the trust preferred securities in a total stated principal
amount equal to the total stated liquidation amount of the trust preferred
securities then outstanding. Prior to any such dissolution, we will obtain any
required regulatory approvals. The right to dissolve the trust and distribute
the junior subordinated debt securities will be conditioned on the receipt by us
of an opinion rendered by an independent tax counsel that such distribution
would not result in the recognition of gain or loss for federal income tax
purposes by the holders.
If the junior subordinated debt securities are distributed to the holders
of the trust preferred securities, we will use our best efforts to cause the
junior subordinated debt securities to be listed on the NYSE or on such other
exchange as the trust preferred securities are then listed.
After the date for any distribution of junior subordinated debt securities
upon dissolution of Bank United Capital Trust:
o the trust preferred securities will no longer be deemed to be
outstanding;
o the securities depositary or its nominee, as the record holder of
the trust preferred securities, will receive a registered global
certificate or certificates representing the junior subordinated
debt securities to be delivered upon such distribution; and
o any certificates representing trust preferred securities not held
by the Depositary or its nominee will be deemed to represent junior
subordinated debt securities having a total principal amount equal
to the total stated liquidation amount of, with an interest rate
identical to the distribution rate of, and with accrued and unpaid
interest equal to accrued and unpaid distributions on, such trust
preferred securities until such certificates are presented to us or
our agent for transfer or reissuance.
We cannot provide any assurance as to the market prices for either the
trust preferred securities or the junior subordinated debt securities that may
be distributed in exchange for the trust preferred securities if a dissolution
and liquidation of Bank United Capital Trust were to occur. Accordingly, the
trust preferred securities that an investor may purchase, whether as a result of
the offer made hereby or in the secondary market, or the junior subordinated
debt securities that an investor may receive if a
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dissolution and liquidation of Bank United Capital Trust were to occur, may
trade at a discount to the price that the investor paid to purchase the trust
preferred securities offered hereby.
REDEMPTION PROCEDURES. Bank United Capital Trust may not redeem fewer than
all of the outstanding trust preferred securities unless all accrued and unpaid
distributions have been paid on all trust preferred securities for all
distribution periods terminating on or prior to the date of redemption.
If Bank United Capital Trust gives a notice of redemption in respect of the
trust preferred securities (which notice will be irrevocable), then, by 12:00
noon, New York City time, on the redemption date, and if we have paid to the
Property Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the junior subordinated debt securities, the Property
Trustee will irrevocably deposit with the Depositary funds sufficient to pay the
applicable Redemption Price and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to the holders of the
trust preferred securities. If notice of redemption has been given and funds
deposited as required, then, immediately prior to the close of business on the
date of such deposit, distributions will cease to accrue and all rights of
holders of trust preferred securities so called for redemption will cease,
except the right of the holders of such trust preferred securities to receive
the Redemption Price but without interest on such Redemption Price. In the event
that any date fixed for redemption of trust preferred securities is not a
business day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a business day (without any interest or
other payment in respect of any such delay), except that, if such business day
falls in the next calendar year, such payment will be made on the immediately
preceding business day. In the event that payment of the Redemption Price in
respect of trust preferred securities is improperly withheld or refused and not
paid either by Bank United Capital Trust, or by us under the trust preferred
securities guarantee, distributions on such trust preferred securities will
continue to accrue at the then applicable rate from the original redemption date
to the date of payment, in which case the actual payment date will be considered
the date fixed for redemption for purposes of calculating the Redemption Price.
In the event that fewer than all of the outstanding trust preferred
securities are to be redeemed, the trust preferred securities will be redeemed
proportionately.
Subject to the foregoing and applicable law, including, without limitation,
U.S. federal securities laws, we or our subsidiaries may at any time, and from
time to time, purchase outstanding trust preferred securities by tender, in the
open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION. The amended declaration states
that Bank United Capital Trust will be dissolved:
o on the expiration of the term of Bank United Capital Trust;
o upon our bankruptcy;
o upon the filing of a certificate of dissolution or its equivalent
with respect to us;
o upon the filing of a certificate of cancellation with respect to
Bank United Capital Trust after obtaining the consent of at least a
majority in liquidation amount of the trust preferred securities,
voting together as a single class;
o 90 days after the revocation of our charter, but only if the
charter is not reinstated during that 90-day period;
o upon the distribution of the related junior subordinated debt
securities directly to the holders of the trust preferred
securities;
o upon the redemption of all of the trust preferred securities; or
o upon entry of a court order for the dissolution of us or Bank
United Capital Trust.
In the event of a dissolution, after Bank United Capital Trust pays all
amounts owed to creditors, the holders of the trust preferred securities will be
entitled to receive:
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o cash equal to the total liquidation amount of each trust preferred
security specified in an accompanying prospectus supplement, plus
accumulated and unpaid distributions to the date of payment, or
o junior subordinated debt securities in a total principal amount
equal to the total liquidation amount of the trust preferred
securities.
If Bank United Capital Trust cannot pay the full amount due on its trust
preferred securities because insufficient assets are available for payment, then
the amounts payable by Bank United Capital Trust on its trust preferred
securities will be paid proportionately. However, if an event of default under
the related amended declaration has occurred, the total amounts due on the trust
preferred securities will be paid before any distribution on the trust common
securities.
DECLARATION EVENTS OF DEFAULT. An event of default under the junior
subordinated indenture relating to the junior subordinated debt securities is an
event of default under the amended declaration (a "Declaration Event of
Default"). See "-- Junior Subordinated Debt Securities -- Events of Default
Under the Junior Subordinated Indenture."
In addition, the following are also Declaration Events of Default:
o the voluntary or involuntary dissolution, winding up or termination
of Bank United Capital Trust, except in connection with
1) the distribution of the junior subordinated debt securities to
holders of the trust securities of Bank United Capital Trust,
2) the redemption of all of the trust securities of Bank United
Capital Trust, and
3) mergers, consolidations or amalgamations permitted by the
amended declaration of Bank United Capital Trust.
Under the amended declaration, the holder of the trust common securities
will be deemed to have waived any Declaration Event of Default with respect to
the trust common securities until all Declaration Events of Default with respect
to the trust preferred securities have been cured, waived or otherwise
eliminated. Until such Declaration Events of Default with respect to the trust
preferred securities have been so cured, waived, or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the holders of
the trust preferred securities and only the holders of the trust preferred
securities will have the right to direct the Property Trustee with respect to
certain matters under the amended declaration and the junior subordinated
indenture. In the event that any Declaration Event of Default with respect to
the trust preferred securities is waived by the holders of the trust preferred
securities as provided in the amended declaration, under the amended declaration
the holders of trust common securities have agreed that such waiver also
constitutes a waiver of such Declaration Event of Default with respect to the
trust common securities for all purposes under the amended declaration without
any further act, vote or consent of the holders of trust common securities.
We and the Regular Trustees must file annually with the Property Trustee a
certificate stating whether or not they are in compliance with all the
applicable conditions and covenants under the related amended declaration.
Upon the occurrence of a Declaration Event of Default, the Property
Trustee, as the sole holder of the junior subordinated debt securities, will
have the right under the junior subordinated indenture to declare the principal
of, premium, if any, and interest on such junior subordinated debt securities to
be immediately due and payable.
If a Property Trustee fails to enforce its rights under the amended
declaration or the junior subordinated indenture to the fullest extent permitted
by law and subject to the terms of the amended declaration and the junior
subordinated indenture, any holder of trust preferred securities may sue us, or
seek other remedies, to enforce the Property Trustee's rights under the amended
declaration or the junior subordinated indenture without first instituting a
legal proceeding against such Property Trustee
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or any other person. If we fail to pay principal of or premium, if any, or
interest on the junior subordinated debt securities when payable, then a holder
of such trust preferred securities may directly sue us or seek other remedies,
to collect its proportionate share of payments owned. See "Relationship Among
The Trust Preferred Securities, The Trust Preferred Securities Guarantee And The
Junior Subordinated Notes Held By Bank United Capital Trust."
REMOVAL AND REPLACEMENT OF TRUSTEES. Only the holders of trust common
securities have the right to remove or replace the trustees of Bank United
Capital Trust, except that while an event of default in respect of the junior
subordinated debt securities has occurred or is continuing, the holders of a
majority of the trust preferred securities will have this right. The resignation
or removal of any trustee and the appointment of a successor trustee will be
effective only on the acceptance of appointment by the successor trustee in
accordance with the provisions of the amended declaration.
CONVERSION OR EXCHANGE RIGHTS. The terms on which the trust preferred
securities are convertible into or exchangeable for common stock or our other
securities will be set forth in the applicable prospectus supplement. Such terms
will include provisions as to whether conversion or exchange is mandatory, at
the option of the holder or at our option, and may include provisions under
which the number of shares of common stock or our other securities to be
received by the holders of trust preferred securities would be subject to
adjustment.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS OF BANK UNITED CAPITAL
TRUST. Bank United Capital Trust may not consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease their properties and assets
substantially as an entirety to any other corporation or other body (each, a
"Merger Event"), except as described below. Bank United Capital Trust may,
with the consent of a majority of its Regular Trustees and without the consent
of the holders of its trust securities, consolidate, amalgamate, merge with or
into, or be replaced by another trust, provided that:
o the successor entity either
1) assumes all of the obligations of Bank United Capital Trust
relating to its trust securities, or
2) substitutes other securities for the trust securities that are
substantially similar to such trust securities, so long as the
successor securities rank the same as such trust securities for
distributions and payments upon liquidation, redemption and
otherwise;
o we acknowledge a trustee of such successor entity who has the same
powers and duties as the Property Trustee of Bank United Capital
Trust, as the holder of the junior subordinated debt securities;
o the trust preferred securities are listed, or any successor
securities will be listed, upon notice of issuance, on the same
securities exchange or other organization that the trust preferred
securities are then listed;
o the Merger Event does not cause the trust preferred securities or
successor securities to be downgraded by any nationally recognized
rating agency;
o the Merger Event does not adversely affect the rights, preferences
and privileges of the holders of the trust securities or successor
securities in any material way, other than with respect to any
dilution of the holders' interest in the new entity;
o the successor entity has a purpose identical to that of Bank United
Capital Trust;
o prior to the Merger Event, we have received an opinion of counsel
from a nationally recognized law firm stating that
1) such Merger Event does not adversely affect the rights of the
holders of the trust preferred securities or any successor
securities in any material way, other than with respect to any
dilution of the holders' interest in the new entity, and
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2) following the Merger Event, neither Bank United Capital Trust
nor the successor entity will be required to register as an
investment company under the Investment Company Act; and
o we guarantee the obligations of the successor entity under the
successor securities in the same manner as in the trust preferred
securities guarantee.
In addition, unless all of the holders of the trust preferred securities
and trust common securities approve otherwise, Bank United Capital Trust will
not consolidate, amalgamate, merge with or into, or be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it, if, in the opinion of a nationally recognized tax counsel
experienced in such matters, the transaction would cause Bank United Capital
Trust or the successor entity to be classified other than as a grantor trust for
U.S. federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF DECLARATION. The holders of trust preferred
securities have no voting rights except as discussed under " -- Mergers,
Consolidations or Amalgamations of Bank United Capital Trust" and
"Guarantees -- Amendments and Assignment," and as otherwise required by law
and the amended declaration.
The amended declaration may be amended if approved by a majority of the
Regular Trustees of Bank United Capital Trust. However, if any proposed
amendment provides for, or such Regular Trustees otherwise propose to effect,
1) any action that would adversely affect the powers, preferences or
special rights of the trust securities, whether by way of amendment
to such amended declaration or otherwise, or
2) the dissolution, winding-up or termination of Bank United Capital
Trust other than under the terms of its amended declaration,
then the holders of the trust preferred securities as a single class will be
entitled to vote on such amendment or proposal. In that case, the amendment or
proposal will only be effective if approved by at least a majority in
liquidation amount of the trust preferred securities affected by such amendment
or proposal.
No amendment may be made to an amended declaration if such amendment would:
o cause Bank United Capital Trust to be characterized as other than a
grantor trust for U.S. federal income tax purposes;
o reduce or otherwise adversely affect the powers of the Property
Trustee; or
o cause Bank United Capital Trust to be deemed to be an "investment
company" which is required to be registered under the Investment
Company Act.
The holders of a majority of the total liquidation amount of the trust
preferred securities have the right to:
o direct the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee; or
o direct the exercise of any trust or power conferred upon such
Property Trustee under the amended declaration, including the right
to direct the Property Trustee, as the holder of the junior
subordinated debt securities, to
1) exercise the remedies available under the junior subordinated
indenture with respect to the junior subordinated debt
securities,
2) waive any event of default under the junior subordinated
indenture that is waivable, or
3) cancel an acceleration of the principal of the junior
subordinated debt securities.
However, if the junior subordinated indenture requires the consent of the
holders of a super-majority of the total principal amount of the junior
subordinated debt securities, then the Property
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Trustee must get approval of the holders of a super-majority in liquidation
amount of the trust preferred securities.
In addition, before taking any of the foregoing actions, the Property
Trustee must obtain an opinion of counsel stating that, as a result of such
action, Bank United Capital Trust will continue to be classified as a grantor
trust for U.S. federal income tax purposes.
The Property Trustee will notify all trust preferred securities holders of
any notice received from the Indenture Trustee with respect to the junior
subordinated debt securities held by Bank United Capital Trust.
As described in the amended declaration, the Property Trustee may hold a
meeting to have holders of trust preferred securities vote on a change or have
them approve a change by written consent.
If a vote by the holders of trust preferred securities is taken or a
consent is obtained, any trust preferred securities that are owned by us or any
of our affiliates will, for purposes of the vote or consent, be treated as if
they were not outstanding, which will have the following consequences:
o we and any of our affiliates will not be able to vote on or consent
to matters requiring the vote or consent of holders of trust
preferred securities; and
o any trust preferred securities owned by us or any of our affiliates
will not be counted in determining whether the required percentage
of votes or consents has been obtained.
INFORMATION CONCERNING THE PROPERTY TRUSTEE. For matters relating to
compliance with the Trust Indenture Act, the Property Trustee will have all of
the duties and responsibilities of an indenture trustee under the Trust
Indenture Act. The Property Trustee, other than during the occurrence and
continuance of a Declaration Event of Default, undertakes to perform only such
duties as are specifically set forth in the amended declaration and, upon a
Declaration Event of Default, must use the same degree of care and skill as a
prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the Property Trustee is under no obligation to
exercise any of the powers given it by the applicable amended declaration at the
request of any holder of trust preferred securities unless it is offered
reasonable security or indemnity against the costs, expenses and liabilities
that it might incur. However, the holders of the trust preferred securities will
not be required to offer such an indemnity where the holders, by exercising
their voting rights, direct the Property Trustee to take any action following a
Declaration Event of Default.
MISCELLANEOUS. The Regular Trustees are authorized and directed to conduct
the affairs of and to operate Bank United Capital Trust in such a way that:
o it will not be deemed to be an "investment company" required to
be registered under the Investment Company Act;
o it will be classified as a grantor trust for U.S. federal income
tax purposes; and
o the junior subordinated debt securities held by it will be treated
as our indebtedness for U.S. federal income tax purposes.
We and the Regular Trustees are authorized to take any action, so long as
it is consistent with applicable law or the certificate of trust or amended
declaration, that we and the Regular Trustees determine to be necessary or
desirable for such purposes.
Holders of trust preferred securities have no preemptive or similar rights.
Bank United Capital Trust may not borrow money, issue debt, execute
mortgages or pledge any of its assets.
GOVERNING LAW. The amended declaration and the related trust preferred
securities will be governed by and construed in accordance with the laws of the
State of Delaware.
GUARANTEES
We will execute a trust preferred securities guarantee, for the benefit of
the holders of trust preferred securities, at the time that Bank United Capital
Trust issues the trust preferred securities. The
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trust preferred securities guarantee will be qualified as an indenture under the
Trust Indenture Act. [ ] will act as the trustee ("Guarantee
Trustee") under the trust preferred securities guarantee for the purposes of
compliance with the Trust Indenture Act. The terms of the trust preferred
securities guarantee will be those set forth in the trust preferred securities
guarantee and those made part of the trust preferred securities guarantee by the
Trust Indenture Act. The following is a summary of the principal terms of the
trust preferred securities guarantee. This summary is not complete and is
qualified in its entirety by reference to the form of trust preferred securities
guarantee, which is filed as an exhibit to the registration statement of which
this prospectus forms a part, and the Trust Indenture Act. The Guarantee Trustee
will hold the trust preferred securities guarantee for the benefit of the
holders of trust preferred securities.
We will irrevocably agree, as described in the trust preferred securities
guarantee, to pay in full, to the holders of the trust preferred securities
issued by Bank United Capital Trust, the trust preferred securities guarantee
payments (except to the extent previously paid), when and as due, regardless of
any defense, right of set-off or counterclaim which Bank United Capital Trust
may have or assert. The following payments, to the extent not paid by Bank
United Capital Trust, will be covered by the trust preferred securities
guarantee:
o any accrued and unpaid distributions required to be paid on the
trust preferred securities, to the extent that Bank United Capital
Trust has funds available to make the payment;
o the redemption price, to the extent that Bank United Capital Trust
has funds available to make the payment; and
o upon a voluntary or involuntary dissolution and liquidation of Bank
United Capital Trust (other than in connection with a distribution
of junior subordinated debt securities to holders of such trust
preferred securities or the redemption of all such trust preferred
securities), the lesser of
1) the total of the liquidation amount specified in the prospectus
supplement for each trust preferred security plus all accrued
and unpaid distributions on the trust preferred securities to
the date of payment, to the extent Bank United Capital Trust
has funds available to make the payment, and
2) amount of assets of Bank United Capital Trust remaining
available for distribution to holders of its trust preferred
securities upon a dissolution and liquidation of the trust.
Our obligation to make a trust preferred securities guarantee payment may
be satisfied by directly paying the required amounts to the holders of the trust
preferred securities or by causing Bank United Capital Trust to pay the amounts
to the holders.
The trust preferred securities guarantee will be a guarantee on a
subordinated basis with respect to the trust preferred securities from the time
of issuance of the trust preferred securities, but will not apply to any payment
of distributions or redemption price, or to payments upon the dissolution,
winding-up or termination of Bank United Capital Trust, except to the extent
Bank United Capital Trust has funds available therefor. If we do not make
interest payments on the junior subordinated debt securities, Bank United
Capital Trust will not pay distributions on the trust preferred securities and
will not have funds available therefor. See "-- Junior Subordinated Debt
Securities."
No single document executed by us relating to the issuance of trust
preferred securities will provide for our full, irrevocable and unconditional
guarantee of the trust preferred securities. It is our obligations under the
junior subordinated indenture, the trust preferred securities guarantee and
amended declaration taken together that have the effect of providing a full,
irrevocable and unconditional guarantee of the trust's obligations under its
trust preferred securities.
STATUS OF THE TRUST PREFERRED SECURITIES GUARANTEE. Our obligations under
the trust preferred securities guarantee will rank junior in priority of payment
to all of our senior indebtedness. This means that we cannot make any payments
on the trust preferred securities guarantee if we default on a payment of senior
indebtedness and do not cure the default within the applicable grace period, or
if the senior indebtedness becomes immediately due because of a default and has
not yet been paid in
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full. In addition, our obligations under the trust preferred securities
guarantee will rank junior to all existing and future liabilities of our
subsidiaries.
The amended declaration will require that the holder of trust preferred
securities accept the subordination provisions and other terms of the trust
preferred securities guarantee. The trust preferred securities guarantee will
constitute a guarantee of payment and not of collection. In other words, the
holder of the guaranteed security may sue us, or seek other remedies, to enforce
its rights under the trust preferred securities guarantee without first suing
any other person or entity. A trust preferred securities guarantee will not be
discharged except by payment of the trust preferred securities guarantee
payments in full to the extent not previously paid or upon distribution of the
junior subordinated debt securities to the holders of trust preferred securities
under the amended declaration.
MATERIAL COVENANTS RELATED TO THE TRUST PREFERRED SECURITIES GUARANTEE. In
the trust preferred securities guarantee, we will covenant that, so long as any
trust preferred securities remain outstanding, if there is an event of default
under the trust preferred securities guarantee or the amended declaration:
o we will not make distributions related to our debt securities that
rank equally with or junior to the junior subordinated debt
securities, including any payment of interest, principal or
premium, or repayments, repurchases or redemptions; and
o we will not make distributions related to our capital stock,
including dividends, redemptions, repurchases, liquidation
payments, or guarantee payments. We may, however, make
distributions in connection with any of the following:
1) repurchases, redemptions or other acquisitions of shares of our
capital stock in connection with any employment contract,
benefit plan or other similar arrangement with or for the
benefit of employees, officers, directors or consultants,
2) an exchange or conversion of any class or series of our capital
stock for any other class or series of our capital stock, or
3) the purchase of fractional interests in shares of our capital
stock under the conversion or exchange provisions of such
capital stock or the security being converted or exchanged.
The trust preferred securities guarantee, however, will except from the
foregoing any stock dividends paid by us where the dividend stock is the same
stock as that on which the dividend is being paid.
AMENDMENTS AND ASSIGNMENT. Except with respect to any changes which do not
adversely affect the rights of holders of trust preferred securities in any
material respect (in which case no consent of such holders will be required), a
trust preferred securities guarantee may only be amended with the prior approval
of the holders of at least a majority of the total liquidation amount of such
trust preferred securities (excluding any such trust preferred securities held
by us or any of our affiliates). A description of the requirements for obtaining
any approval is described under "Trust Preferred Securities -- Voting Rights;
Amendment of Declaration." All guarantees and agreements contained in the trust
preferred securities guarantee will be binding on our successors, assigns,
receivers, trustees and representatives and are for the benefit of the holders
of the applicable trust preferred securities.
TRUST PREFERRED SECURITIES GUARANTEE EVENTS OF DEFAULT. An event of
default under the trust preferred securities guarantee will occur if we fail to
make any of our required payments or perform our obligations under the trust
preferred securities guarantee.
The holders of at least a majority of the total liquidation amount of the
trust preferred securities (excluding any trust preferred securities held by us
or any of our affiliates) will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee or to direct the exercise of any trust or power given to the Guarantee
Trustee under the trust preferred securities guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE. The Guarantee Trustee under
the trust preferred securities guarantee, other than during the occurrence and
continuance of an event of default
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under such trust preferred securities guarantee, will only perform the duties
that are specifically described in such trust preferred securities guarantee.
After such a default, the Guarantee Trustee will exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of its powers as described in the trust preferred
securities guarantee at the request of any holder of covered trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that it might incur.
TERMINATION OF THE TRUST PREFERRED SECURITIES GUARANTEE. The trust
preferred securities guarantee will terminate once the trust preferred
securities are paid in full or upon distribution of the junior subordinated debt
securities to the holders of such trust preferred securities. The trust
preferred securities guarantee will continue to be effective or will be
reinstated if at any time any holder of trust preferred securities must restore
payment of any sums paid under such trust preferred securities or such trust
preferred securities guarantee.
GOVERNING LAW. The trust preferred securities guarantee will be governed
by and construed in accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES,
THE TRUST PREFERRED SECURITIES GUARANTEE
AND THE JUNIOR SUBORDINATED NOTES HELD BY BANK UNITED CAPITAL TRUST
We will guarantee payments of distributions and redemption and liquidation
payments due on the trust preferred securities (to the extent the trust has
funds available for the payments) to the extent described under "Description of
Offered Securities -- Guarantees." No single document executed by us in
connection with the issuance of the trust preferred securities will provide for
our full, irrevocable and unconditional guarantee of such trust preferred
securities. It is only the combined operation of our obligations under the trust
preferred securities guarantee, the amended declaration and the junior
subordinated indenture that has the effect of providing a full, irrevocable and
unconditional guarantee of Bank United Capital Trust's obligations under the
trust preferred securities.
As long as we make payments of interest and other payments when due on the
junior subordinated debt securities held by Bank United Capital Trust, such
payments will be sufficient to cover the payment of distributions and redemption
and liquidation payments due on the trust preferred securities issued by Bank
United Capital Trust, primarily because:
o the total principal amount of the junior subordinated debt
securities will be equal to the sum of the total liquidation amount
of the trust securities;
o the interest rate and interest and other payment dates on the
junior subordinated debt securities will match the distribution
rate and distribution and other payment dates for the trust
preferred securities;
o we will pay for any and all costs, expenses and liabilities of
Bank United Capital Trust except its obligations under its trust
preferred securities; and
o each amended declaration provides that Bank United Capital Trust
will not engage in any activity that is not consistent with the
limited purposes of Bank United Capital Trust.
If and to the extent that we do not make payments on the junior
subordinated debt securities, Bank United Capital Trust will not have funds
available to make payments of distributions or other amounts due on its trust
preferred securities. In those circumstances, you will not be able to rely upon
the trust preferred securities guarantee for payment of these amounts. Instead,
you may directly sue us or seek other remedies to collect your proportionate
share of payments owed. If you sue us to collect payment, then we will assume
your rights as a holder of trust preferred securities under the amended
declaration to the extent we make a payment to you in any such legal action.
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SELLING STOCKHOLDERS
The selling stockholders are the general partners and some of the limited
partners of Hyperion Partners L.P., a Delaware limited partnership, and three
other entities with which an affiliate of Hyperion Partners has a fiduciary
relationship. The applicable prospectus supplement for any offering of Class A
common stock by selling stockholders will include the following information:
o the name of the selling stockholders;
o the number of shares held by each of the selling stockholders;
o the percentage of the class of shares held by each of the selling
stockholders; and
o the number of shares of Class A common stock offered by each of the
selling stockholders.
SELLING STOCKHOLDER LETTER AGREEMENT
The following summary of the material provisions of the letter agreement
that affects the selling stockholders is qualified in its entirety by reference
to the letter agreement which we filed as an exhibit to the registration
statement on Form S-1 (File No. 333-06229) filed by us with the Commission on
August 7, 1996 in connection with our IPO. Please review the exhibit for further
details not described in the summary in this section.
In connection with our IPO in August, 1996, some of the holders of our
common stock, including all of the selling stockholders with the exception of
the FDIC entered into a letter agreement with us. This letter agreement
restricts the holders' ability to sell our common stock, other than the shares
sold in the IPO, for a specific period of time. Under the terms of the letter
agreement, each selling stockholder who retained shares of common stock
following the IPO was not permitted to sell such shares for (1) one year after
the IPO, if the stock was received in respect of general partnership interests
in Hyperion Partners, or (2) six months after the IPO, if the stock was received
in respect of limited partnership interests in Hyperion Partners (although a
regulated New Jersey insurance company was permitted to sell shares in a private
off-market transaction subject to Rule 144 limits and reasonable representations
requested by the underwriters). Each holder of 5% or more of our common stock
was permitted to sell up to 45% of such holder's shares of common stock in the
IPO, except for certain affiliates of Lehman Brothers Inc., which were
prohibited from selling any shares until August 8, 1998, and any other selling
stockholder was permitted to sell up to 16% of its shares in the IPO. Each
selling stockholder acknowledged that, except for shares that could have been
sold under the IPO 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
our capital stock for three years following the IPO (or upon termination of the
letter agreement, if earlier) unless as of an earlier date our Board determines
that such acquisition or transfer would not be reasonably likely to have a
material adverse effect on our tax position.
At December 31, 1998, 8,205,778 shares of our common stock were still
subject to the restrictions of the letter agreement. The letter agreement may be
terminated by agreement of each of the parties, and if not terminated will
expire on August 8, 1999, which is the third anniversary of our IPO. We have not
registered 966,037 shares of our Class A common stock that are not longer
subject to the restrictions of the letter agreement, that can be sold under Rule
144 of the Securities Act.
Under the letter agreement, we filed registration statements under the
Securities Act with respect to 10,348,781 shares of Class A common stock held by
the selling stockholders. We are obligated to take action to keep such
registration statements effective, subject to occasional periods of suspension
of effectiveness as necessary, until the first to occur of:
o the date on which all shares of common stock registered under the
registration statements have been sold;
o December 31, 1999; and
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o 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, which
registers 8,205,778 shares still restricted under the letter agreement and the
966,037 shares that have not been registered is being filed in order to register
the remaining common shares subject to our registration obligation under the
letter agreement.
PLAN OF DISTRIBUTION
We may sell Class A common stock, preferred stock, junior subordinated debt
securities or Guarantees; Bank United Capital Trust may sell trust preferred
securities; and the selling stockholders may sell Class A common stock. All of
such securities may be offered hereby in one or more of the following ways from
time to time:
o to underwriters for resale to the public or to investors;
o directly to investors; or
o through agents to the public or to investors.
The applicable prospectus supplements will set forth the terms of the
offering of the securities, including the name or names of any underwriters or
agents, the initial public offering price of such securities and the proceeds to
us, Bank United Capital Trust, or the selling stockholders, as the case may be,
from such sale, any underwriting discounts or agency fees and other items
constituting underwriters' or agents' compensation, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such securities may be listed.
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be 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.
Unless otherwise set forth in a prospectus supplement, the obligations of
the underwriters to purchase any series of securities will be subject to certain
conditions and the underwriters will be obligated to purchase all the securities
of the series, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
us and/or Bank United Capital Trust and/or the selling stockholders to
indemnification by us and/or Bank United Capital Trust and/or the selling
stockholders against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof. Underwriters
and agents may be customers of, engage in transactions with, or perform services
for us and our affiliates in the ordinary course of business.
Each series of offered securities will be a new issue of securities and
will have no established trading market other than the Class A common stock,
which is listed on the NASDAQ. Any Class A common stock sold under a prospectus
supplement will be listed on the NASDAQ, subject to official notice of issuance.
Any underwriters to whom securities are sold by us, by Bank United Capital Trust
or the selling stockholders for public offering and sale may make a market in
the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. The securities may or
may not be listed on a national securities exchange.
We cannot assure you that we, Bank United Capital Trust or the selling
stockholders will offer or sell any securities under this prospectus.
Neither we nor Bank United Capital Trust will receive any proceeds from the
sales of shares of Class A common stock by the selling stockholders. We will,
however, bear certain expenses in connection with the registration of the
securities being offered under this prospectus by Bank United Capital Trust and
the selling stockholders, including all costs incident to the offering and sale
of the
35
<PAGE>
securities to the public other than any commissions and discounts of
underwriters, dealers or agents and any transfer taxes.
The selling stockholders, and any broker-dealer who acts in connection with
the sale of offered securities hereunder, may be deemed to be an "underwriter"
as that term is defined in the Securities Act, and any commissions received by
them and profit on any resale of the offered securities as principal may be
deemed to be underwriting discounts and commissions under the Securities Act.
We have not authorized anyone (including any salesman or broker) to give
oral or written information about this offering that is different from the
information included in this prospectus or that is not included in this
prospectus.
LEGAL MATTERS
Wachtell, Lipton, Rosen & Katz, New York, New York will pass upon the
validity of the Class A common stock, the preferred stock, the Depositary
Shares, the trust preferred securities, the junior subordinated debt securities,
the trust preferred securities guarantee and certain matters relating thereto
and certain U.S. federal income tax matters for us, the selling stockholders and
Bank United Capital Trust. Cleary, Gottlieb, Steen & Hamilton, New York, New
York or Simpson Thacher & Bartlett, New York, New York will pass upon certain
legal matters relating to the offered securities for the underwriters, in each
case as set forth in the applicable prospectus supplement.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference from Bank United Corp.'s Annual
Report on Form 10-K for the year ended September 30, 1998 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference in this prospectus, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
With respect to the unaudited interim financial information for the period
ended December 31, 1998 which is incorporated herein by reference, Deloitte &
Touche have applied limited procedures in accordance with professional standards
for a review of such information. However, as stated in their report included in
Bank United Corp.'s Quarterly Report on Form 10-Q for the quarter ended December
31, 1998 and incorporated by reference herein, they did not audit and they do
not express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. Deloitte & Touche
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their reports on the unaudited interim financial information because
those reports are not "reports" or a "part" of the registration statement
prepared or certified by an accountant within the meaning of Sections 7 and 11
of the Act.
FORWARD-LOOKING INFORMATION
Statements and financial discussion and analysis contained in this
prospectus 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:
INTEREST RATES AND ECONOMY
o Changes in interest rates and economic conditions;
o changes in the levels of loan prepayments and the resulting effects
on the value of our loan and servicing portfolios and the related
hedging instruments;
36
<PAGE>
o changes in local economic and business conditions adversely
affecting our borrowers and their ability to repay their loans
according to their terms or impacting the value of the related
collateral; and
o changes in local economic and business conditions adversely
affecting our customers other than borrowers and their ability to
transact profitable business with us.
COMPETITION AND PRODUCT AVAILABILITY
o Increased competition for deposits and loans adversely affecting
rates and terms;
o changes in availability of loans originated by other financial
institutions or our ability to purchase such loans on favorable
terms;
o changes in availability of single family servicing rights in the
marketplace and our ability to purchase such assets on favorable
terms; and
o various strategic alternatives that we consider from time to
time, including acquisitions of other depository institutions,
their assets or their liabilities on terms favorable to us, and
our successful integration of any such acquisitions.
CHANGE IN OUR ASSET MIX
o Increased credit risk in our assets and increased operating risk
caused by an increase in commercial and consumer loans and a
decrease in single family mortgage loans as a percentage of the
total loan portfolio.
LIQUIDITY AND CAPITAL
o Changes in the availability of funds resulting in increased costs
or reduced liquidity;
o changes in our ability to pay dividends on our common stock; and
o increased asset levels and changes in the composition of assets and
the resulting impact on the Bank's capital levels and regulatory
capital ratios.
SYSTEMS
o Our ability to acquire, operate and maintain cost effective and
efficient systems; and
o our ability to complete our project to assess and resolve any Year
2000 problems on time.
PERSONNEL
o The loss of senior management or operating personnel and the
potential inability to hire qualified personnel at reasonable
compensation levels.
REGULATORY, COMPLIANCE AND LEGAL
o Changes in applicable statutes and government regulations or their
interpretations;
o claims of our noncompliance with statutory and regulatory
requirements;
o claims with respect to representations and warranties made by us to
purchasers and insurers of mortgage loans and to purchasers of
mortgage servicing rights; and
o changes in the status of litigation to which we are a party.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333-[ ]) that
we filed with the Commission utilizing a "shelf" registration procedure. Under
this shelf procedure, we, the selling stockholders and Bank United Capital Trust
may, from time to time, sell any combination of the
37
<PAGE>
securities described in this prospectus in one or more offerings up to a total
offering price of $680 million.
This prospectus provides you with a general description of the securities
that we, the selling stockholders or Bank United Capital Trust may offer. We
will provide a prospectus supplement that will contain specific information
about the terms of each offering of securities. The prospectus supplement may
also add, update or change information contained in this prospectus. You should
read both this prospectus and any prospectus supplement together with the
additional information described under the heading "Where You Can Find More
Information" below.
You should rely only on the information provided in this prospectus and in
any prospectus supplement, including the information incorporated by reference.
We have not authorized anyone to provide you with different information. You
should not assume that the information in this prospectus, or any supplement to
this prospectus, is accurate at any date other than the date indicated on the
cover page of these documents.
We are not offering the securities in any state where the offer is not
permitted.
WHERE YOU CAN FIND MORE INFORMATION
The rules and regulations of the Commission allow us to omit some of the
information included in the registration statement from this prospectus. The
registration statement, including the attached exhibits and schedules, contains
additional relevant information about us and our securities.
In addition, we file reports, proxy statements and other information with
the Commission under the Securities Exchange Act of 1934. You may read and copy
this information at the following locations of the Commission:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois
60661-2511
You may obtain information on the operation of the Public Reference Room by
calling the Commission at 1-800-SEC-0330. The Commission also maintains an
Internet world wide web site that contains reports, proxy statements and other
information about issuers, like us, who file electronically with the Commission.
The address of that site is http://www.sec.gov.
The Commission allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring you to the other information we have filed with the Commission. The
information that we incorporate by reference is considered to be part of this
prospectus, and later information that we file with the Commission will
automatically update and supersede the information we've included in this
prospectus. We incorporate by reference the documents listed below:
o Our Annual Report on Form 10-K for the year ended September 30,
1998.
o Our Quarterly Report on Form 10-Q for the quarter ended December
31, 1998.
o The description of our Class A common stock contained in our Form
8-A dated July 12, 1996.
o Our Proxy Statement for the Annual Meeting of Stockholders dated
February 10, 1999.
We also incorporate by reference any future filings we will make with the
Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this prospectus but before the end of the offering of the securities
described in this prospectus.
38
<PAGE>
You may request a free copy of these filings by writing or calling us at
the following address:
INVESTOR RELATIONS
BANK UNITED CORP.
3200 SOUTHWEST FREEWAY
SUITE 3100
HOUSTON, TX 77027
(713) 543-6926
This prospectus does not contain or incorporate by reference any separate
financial statements of Bank United Capital Trust. We do not believe that these
financial statements are material to prospective holders of the trust preferred
securities because:
o all of the voting securities of Bank United Capital Trust will be
owned, directly or indirectly, by us, and we are a reporting
company under the Securities Exchange Act of 1934;
o Bank United Capital Trust has no independent operations but exists
for the sole purpose of issuing securities representing undivided
beneficial ownership interests in its assets and investing these
proceeds in the junior subordinated debt securities issued by us;
and
o the obligations of Bank United Capital Trust under the trust
preferred securities are guaranteed by us to the extent described
in this prospectus.
Bank United Capital Trust is not currently subject to the informational
reporting requirements of the Securities Exchange Act of 1934. Bank United
Capital Trust will become subject to such requirements upon the effectiveness of
the registration statement of which this prospectus is a part, although we and
Bank United Capital Trust intend to seek and expect to receive exemptions from
those reporting requirements from the Commission.
39
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale and
distribution of the securities being registered. All amounts except the
commission registration fee are estimated.
<TABLE>
<CAPTION>
ITEM AMOUNT
- ------------------------------------- --------
<S> <C>
Registration fee..................... $189,040
Blue Sky fees and expenses........... 10,000
Printing and engraving expenses...... 50,000
Legal fees and expenses.............. 30,000
Accounting fees and expenses......... 25,000
Transfer Agent and Registrar fees.... 10,000
Miscellaneous........................ 10,000
--------
Total........................... $324,040
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Bank United Corp. is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "DGCL") contains detailed
provisions on indemnification of directors and officers of a Delaware
corporation against expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with certain litigation.
Bank United Corp.'s Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides that a director of Bank United Corp.
will not be personally liable to Bank United Corp. or its stockholders for
monetary damages for breach of fiduciary duty as a director, except, if required
by the DGCL as amended from time to time, for liability (i) for any breach of
the director's duty of loyalty to Bank United Corp. or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, which
concerns unlawful payments of dividends, stock purchases or redemptions, or (iv)
for any transaction from which the director derived an improper personal
benefit. Neither the amendment nor repeal of such provision will eliminate or
reduce the effect of such provision in respect of any matter occurring, or any
cause of action, suit or claim that, but for such provision, would accrue or
arise prior to such amendment or repeal.
While the Certificate of Incorporation provides directors with protection
from awards for monetary damages for breaches of their duty of care, it does not
eliminate such duty. Accordingly, the Certificate of Incorporation will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on a director's breach of his or her duty of care.
The Certificate of Incorporation 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 Bank
United Corp. or is or was serving at the request of Bank United Corp. 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 Bank United Corp. 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
Bank United Corp. to provide
II-1
<PAGE>
broader indemnification rights than said law permitted Bank United Corp. 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 Bank United Corp. 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 of Incorporation, By-Laws,
agreement, vote of stockholders or disinterested directors or otherwise. No
repeal or modification of such provision will in any way diminish or adversely
affect the rights of any director, officer, employee or agent of Bank United
Corp. thereunder in respect of any occurrence or matter arising prior to any
such repeal or modification. The Certificate of Incorporation also specifically
authorizes the Registrant to maintain insurance and to grant similar
indemnification rights to employees or agents of the Registrant.
Article 4 of the Amended Declaration provides for the indemnification by
Bank United Corp. of the Property Trustee and the Delaware Trustee. Article 9 of
the Amended Declaration provides for the indemnification of the Regular Trustee,
the Property Trustee and the Delaware Trustee, and their affiliates, by Bank
United Capital Trust.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS AND SCHEDULES
(a) EXHIBITS
The following Exhibits are filed herewith or incorporated herein by
reference:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- -------------------------------------------------------------
<C> <S>
1.1* -- Form of Underwriting Agreement
relating to Class A common stock.
1.2* -- Form of Underwriting Agreement
relating to trust preferred
securities.
3.1 -- Form of Restated Certificate of
Incorporation of Bank United Corp.,
as amended (incorporated by reference
to Exhibit 3.1 to Form S-1,
Registration No. 333-06229).
3.2 -- Form of By-Laws of Bank United Corp.
(incorporated by reference to Exhibit
3.2 to Form S-1, Registration No.
333-06229).
4.1 -- Form of Class A Common Stock
(incorporated herein by reference to
Form 8-A filed, July 15, 1996).
4.2* -- Form of certificate of designation
with respect to preferred stock.
4.3* -- Form of Deposit Agreement.
4.4* -- Form of Depositary Receipt (included
in Exhibit 4.3).
4.5* -- Form of Amended and Restated
Declaration of Trust of Bank United
Capital Trust.
4.6 -- Certificate of Trust of Bank United
Capital Trust.
4.7* -- Form of junior subordinated indenture
between Bank United Corp. and Bank of
New York, Indenture Trustee.
4.8* -- Form of trust preferred securities
guarantee between Bank United Corp.
and Bank of New York, Guarantee
Trustee.
4.9 -- Form of certificate of junior
subordinated debt securities
(included in Exhibit 4.7 above).
4.10 -- Form of certificate of trust
preferred securities of Bank United
Capital Trust (included in Exhibit 4.5
above).
5.1** -- Opinion of Wachtell, Lipton, Rosen &
Katz..
5.4** -- Opinion of Richards, Layton & Finger,
special Delaware counsel, as to
legality of the securities to be
issued by Bank United Capital Trust.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- -------------------------------------------------------------
<C> <S>
8.1** -- Opinion of [ ] as to
certain federal income tax matters.
12.1 -- Computation of ratio of earnings to
fixed charges and earnings to
combined fixed charges and preferred
dividends.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 5.1).
23.5 -- Consent of Richards, Layton & Singer
(included in Exhibit 5.4).
23.6 -- Consent of [ ]
(included in Exhibit 8.1).
24.1 -- Power of Attorney (included on the
signature page of this Registration
Statement).
25.1** -- Form T-1 Statement of Eligibility of
Bank of New York, Delaware to act as
Property Trustee [and Delaware
Trustee] under the Amended and
Restated Declaration of Trust of Bank
United Capital Trust.
25.2* -- Form T-1 Statement of Eligibility of
Bank of New York to act as Indenture
Trustee under the junior subordinated
indenture.
25.3* -- Form T-1 Statement of Eligibility of
Bank of New York to act as Guarantee
Trustee under the trust preferred
securities guarantee of Bank United
Capital Trust.
</TABLE>
- ------------
* To be filed by admendment or by filing of a Form 8-K subsequently
incorporated by reference.
** To be filed by admendment.
(b) FINANCIAL STATEMENTS AND SCHEDULES
Either not applicable or shown in the financial statements or notes
thereto.
ITEM 17. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 (notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum total offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration
Statement); and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will 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.
II-3
<PAGE>
(4) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by each Registrant pursuant to Rule
424(b)(1) or (4) or 497 (h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective. For the purpose of determining any liability under
the Securities Act, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE
offering thereof.
(5) For purposes of determining any liability under the Securities Act,
each filing of the each Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted as to directors, officers and controlling persons of each of
the Registrants pursuant to the DGCL, the organizational documents of the
Registrants, indemnification agreements entered into between Registrants and
their officers, directors or trustees, or otherwise, each 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 Registrants of expenses incurred or
paid by a director, officer, trustee or controlling person of the Registrants in
the successful defense of any action, suit, or proceeding) is asserted by such
director, officer, trustee or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, each of the undersigned
Registrants certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Registration Statement on Form S-3 or
amendment thereto and has duly caused this Registration Statement or amendment
thereto to be signed on its behalf by the undersigned, thereunto duly
authorized, in Houston, Texas, on April 8, 1999.
BANK UNITED CAPITAL TRUST
(Registrant)
By: BANK UNITED CORP., as Sponsor
By:/s/JONATHON K. HEFFRON
Name: Jonathon K. Heffron
Title: Chief Operating Officer
BANK UNITED CORP.
(Registrant)
By:/s/ANTHONY J. NOCELLA
Name: Anthony J. Nocella
Title: Vice Chairman
II-5
<PAGE>
SIGNATURES -- (CONTINUED)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Barry C. Burkholder as his or her
attorney-in-fact with power of substitution for him or her in any and all
capacities, to sign any amendments, supplements, subsequent registration
statements relating to the offering to which this Registration Statement
relates, or other instruments he deems necessary or appropriate, and to file the
same, with exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact or his substitute may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement or amendment thereto has been signed by the following persons in the
capacities indicated on April 8, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------------- ------------------------------------------------------------
<S> <C>
/s/BARRY C. BURKHOLDER Principal Executive Officer; Director
Barry C. Burkholder
/s/ANTHONY J. NOCELLA Principal Financial and Accounting Officer; Director
Anthony J. Nocella
/s/LEWIS S. RANIERI Director
Lewis S. Ranieri
/s/LAWRENCE CHIMERINE Director
Lawrence Chimerine
/s/DAVID M. GOLUSH Director
David M. Golush
/s/PAUL M. HORVITZ Director
Paul M. Horvitz
/s/ALAN E. MASTER Director
Alan E. Master
/s/SALVATORE A. RANIERI Director
Salvatore A. Ranieri
/s/SCOTT A. SHAY Director
Scott A. Shay
/s/PATRICIA A. SLOAN Director
Patricia A. Sloan
/s/MICHAEL S. STEVENS Director
Michael S. Stevens
/s/KENDRICK R. WILSON III Director
Kendrick R. Wilson III
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- -------------------------------------------------------------
<C> <S>
1.1* -- Form of Underwriting Agreement
relating to Class A common stock.
1.2* -- Form of Underwriting Agreement
relating to trust preferred
securities.
3.1 -- Form of Restated Certificate of
Incorporation of Bank United Corp.,
as amended (incorporated by reference
to Exhibit 3.1 to Form S-1,
Registration No. 333-06229).
3.2 -- Form of By-Laws of Bank United Corp.
(incorporated by reference to Exhibit
3.2 to Form S-1, Registration No.
333-06229).
4.1 -- Form of Class A Common Stock
(incorporated herein by reference to
Form 8-A filed, July 15, 1996).
4.2* -- Form of certificate of designation
with respect to preferred stock.
4.3* -- Form of Deposit Agreement.
4.4* -- Form of Depositary Receipt (included
in Exhibit 4.3).
4.5* -- Form of Amended and Restated
Declaration of Trust of Bank United
Capital Trust.
4.6 -- Certificate of Trust of Bank United
Capital Trust.
4.7* -- Form of junior subordinated indenture
between Bank United Corp. and Bank of
New York, Indenture Trustee.
4.8* -- Form of trust preferred securities
guarantee between Bank United Corp.
and Bank of New York, Guarantee
Trustee.
4.9 -- Form of certificate of junior
subordinated debt securities
(included in Exhibit 4.7 above).
4.10 -- Form of certificate of trust
preferred securities of Bank United
Capital Trust (included in Exhibit
4.4 above).
5.1** -- Opinion of Wachtell, Lipton, Rosen &
Katz.
5.4** -- Opinion of Richards, Layton & Finger,
special Delaware counsel, as to
legality of the securities to be
issued by Bank United Capital Trust.
8.1** -- Opinion of [ ] as to
certain federal income tax matters.
12.1 -- Computation of ratio of earnings to
fixed charges and earnings to
combined fixed charges and preferred
dividends.
23.1 -- Consent of Deloitte & Touche LLP.
23.2 -- Consent of Wachtell, Lipton, Rosen &
Katz (included in Exhibit 5.1).
23.5 -- Consent of Richards, Layton & Finger
(included in Exhibit 5.4).
23.6 -- Consent of [ ]
(included in Exhibit 8.1).
24.1 -- Power of Attorney (included on the
signature page of this Registration
Statement).
25.1** -- Form T-1 Statement of Eligibility of
Bank of New York, Delaware to act as
Property Trustee [and Delaware
Trustee] under the Amended and
Restated Declaration of Trust of Bank
United Capital Trust.
25.2* -- Form T-1 Statement of Eligibility of
Bank of New York to act as Indenture
Trustee under the junior subordinated
indenture.
25.3* -- Form T-1 Statement of Eligibility of
Bank of New York to act as Guarantee
Trustee under the trust preferred
securities guarantee of Bank United
Capital Trust.
</TABLE>
- ------------
* To be filed by amendement or by filing of a Form 8-K subsequently
incorporated by reference
** To be filed by amendement
EXHIBIT 4.6
CERTIFICATE OF TRUST
OF
BANK UNITED CAPITAL TRUST
THIS CERTIFICATE OF TRUST of Bank United Capital Trust (the "Trust"),
dated as of April 7, 1999, is being duly executed and filed by the undersigned,
as trustees, with the Secretary of State of the State of Delaware to form a
business trust under the Delaware Business Trust Act (12 DEL. C. 3801 ET
SEQ.)(the "Act").
1. NAME. The name of the business trust formed hereby is "Bank United
Capital Trust."
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The Bank
of New York (Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective at the
time of its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the Trust
at the time of filing this Certificate of Trust, have duly executed this
Certificate of Trust in accordance with Section 3811(a) of the Act as of the
date first above written.
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but solely
as Delaware Trustee
By:/s/WALTER N. GITLIN
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Property Trustee
By:/s/MARY BETH LEWICK
Name: Mary Beth Lewick
Title: Assistant Vice President
ANTHONY J. NOCELLA, not in his
individual capacity but solely as
Regular Trustee
/s/ANTHONY J. NOCELLA
EXHIBIT 12.1
BANK UNITED CORP.
RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31, FOR THE YEAR ENDED SEPTEMBER 30,
-------------------- -----------------------------------------------------
1998 1997 1998 1997 1996 1995 1994
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss... $ 51,023 $ 39,991 $ 158,353 $ 157,833 $ 67,836 $ 90,111 $ 86,081
Fixed charges, excluding interest
expense on deposits................ 86,903 85,002 316,947 290,377 320,450 296,623 119,906
--------- --------- --------- --------- --------- --------- ---------
Income before income taxes and fixed
charges............................ $ 137,926 $ 124,993 $ 475,300 $ 448,210 $ 388,286 $ 386,734 $ 205,987
========= ========= ========= ========= ========= ========= =========
FIXED CHARGES
Interest expense, excluding interest
expense on deposits................ $ 85,539 $ 83,706 $ 311,905 $ 283,303 $ 312,558 $ 288,394 $ 111,890
One-third net rental expense......... 1,264 1,196 4,641 6,172 6,892 7,253 7,039
Amortization of debt expense......... 100 100 401 902 1,000 976 977
--------- --------- --------- --------- --------- --------- ---------
Total fixed charges, excluding
interest expense on deposits....... $ 86,903 $ 85,002 $ 316,947 $ 290,377 $ 320,450 $ 296,623 $ 119,906
--------- --------- --------- --------- --------- --------- ---------
Bank Preferred Stock Series A
dividends, pre-tax basis........... 3,455 3,461 13,826 14,058 14,711 14,011 14,006
Bank Preferred Stock Series B
dividends, pre-tax basis........... 3,834 3,840 15,339 15,597 16,321 3,152 --
--------- --------- --------- --------- --------- --------- ---------
Combined fixed charges and Preferred
Stock dividends (Series A and B)... $ 94,192 $ 92,303 $ 346,112 $ 320,032 $ 351,482 $ 313,786 $ 133,912
========= ========= ========= ========= ========= ========= =========
Earnings to fixed charges ratio,
excluding interest expense on
deposits........................... 1.59 1.47 1.50 1.54 1.21 1.30 1.72
Earnings to combined fixed charges
and Preferred Stock dividends,
excluding interest expense on
deposits........................... 1.46 1.35 1.37 1.40 1.10 1.23 1.54
EARNINGS
Income before income taxes, minority
interest, and extraordinary loss... $ 51,023 $ 39,991 $ 158,353 $ 157,833 $ 67,836 $ 90,111 $ 86,081
Fixed charges, including interest
expense on deposits................ 161,279 152,640 617,707 553,138 592,670 560,989 328,940
--------- --------- --------- --------- --------- --------- ---------
Income before income taxes and fixed
charges............................ $ 212,302 $ 192,631 $ 776,060 $ 710,971 $ 660,506 $ 651,100 $ 415,021
========= ========= ========= ========= ========= ========= =========
FIXED CHARGES
Interest expense, including interest
expense on deposits................ $ 159,915 $ 151,344 $ 612,665 $ 546,064 $ 584,778 $ 552,760 $ 320,924
One-third net rental expenses........ 1,264 1,196 4,641 6,172 6,892 7,253 7,039
Amortization of debt expense......... 100 100 401 902 1,000 976 977
--------- --------- --------- --------- --------- --------- ---------
Total fixed charges, including
interest expense on deposits....... $ 161,279 $ 152,640 $ 617,707 $ 553,138 $ 592,670 $ 560,989 $ 328,940
--------- --------- --------- --------- --------- --------- ---------
Bank Preferred Stock Series A
dividends, pre-tax basis........... 3,455 3,461 13,826 14,058 14,711 14,011 14,006
Bank Preferred Stock Series B
dividends, pre-tax basis........... 3,834 3,840 15,339 15,597 16,321 3,152 --
--------- --------- --------- --------- --------- --------- ---------
Combined fixed charges and Preferred
Stock dividends (Series A and B)... $ 168,568 $ 159,941 $ 646,872 $ 582,793 $ 623,702 $ 578,152 $ 342,946
========= ========= ========= ========= ========= ========= =========
Earnings in fixed charges ratio,
including interest expense on
deposits........................... 1.32 1.26 1.26 1.29 1.11 1.16 1.26
Earnings to combined fixed charges
and Preferred Stock dividends,
including interest expense on
deposits........................... 1.26 1.20 1.20 1.22 1.06 1.13 1.21
</TABLE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Bank United Corp. on Form S-3 of our report dated October 21, 1998, appearing
in the Annual Report on Form 10-K of Bank United Corp. for the year ended
September 30, 1998 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
April 7, 1999
