AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1997
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BANKATLANTIC BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 65-0507804
------------------------------ ----------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
<TABLE>
<CAPTION>
<S> <C>
ALAN B. LEVAN
BANKATLANTIC BANCORP, INC.
1750 EAST SUNRISE BOULEVARD 1750 EAST SUNRISE BOULEVARD
FORT LAUDERDALE, FLORIDA 33304 FORT LAUDERDALE, FLORIDA 33304
TELEPHONE (954) 760-5000 TELEPHONE (954) 760-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
---------------
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<CAPTION>
<S> <C>
ALISON W. MILLER, ESQ.
STEARNS WEAVER MILLER WEISSLER JOHN J. SPIDI, ESQ.
ALHADEFF & SITTERSON, P.A. MALIZIA, SPIDI, SLOANE & FISCH, P.C.
150 WEST FLAGLER STREET, SUITE 2200 1301 K STREET, N.W., SUITE 700 EAST
MIAMI, FLORIDA 33130 WASHINGTON, D.C. 20005
</TABLE>
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 check the following box [ ].
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration 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 [ ].
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS TO BE OFFERING PRICE AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(2) PER UNIT OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
% Cumulative Subordinated
Debentures Due 2007 ........................... $115,000,000 $ 1,000(1) $ 115,000,000(1) $ 34,848.45
Class A Common Stock (Conversion Shares)(3) . shares N/A N/A N/A (3)
Class A Common Stock ........................ 3,450,000 shares $ 14.5625(4) $ 50,240,625(4) $ 15,224.43
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</TABLE>
(1) Computed in accordance with Rule 457(o) under the Securities Act of 1933.
(2) Includes up to $15,000,000 additional principal amount of % Convertible
Subordinated Debentures due 2007 (the "Debentures") and up to 450,000
shares of Class A Common Stock which may be acquired by the Underwriters
to cover overallotments, if any.
(3) The Class A Common Stock (Conversion Shares) is being registered hereby
solely because the Debentures are immediately convertible into such stock.
However, pursuant to Rule 457(i) of the Securities Act of 1933, no
registration fee is required with respect to the Class A Common Stock
(Conversion Shares).
(4) Computed in accordance with Rule 457(c), based on the average of the high
and low price of the Class A Common Stock on October 23, 1997.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under thesecurities laws of any such State.
PROSPECTUS SUBJECT TO COMPLETION
PROSPECTUS DATED OCTOBER , 1997
3,000,000 SHARES
CLASS A COMMON STOCK
[BANKATLANTIC (NON-VOTING)
BANCORP LOGO]
$100,000,000
% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
---------------
All of the shares of Class A Common Stock of BankAtlantic Bancorp, Inc.
(the "Company") offered hereby are being issued and sold by the Company. The
% Convertible Subordinated Debentures Due 2007 (the "Debentures") of the
Company will mature on , 2007 and will accrue interest at the rate of %
per annum from the date of delivery. The Debentures are convertible at any time
prior to maturity, unless previously redeemed, into shares of Class A Common
Stock of the Company at a conversion price of $ per share (equivalent to a
conversion rate of shares per $1,000 principal amount of Debentures),
subject to adjustment in certain events. On October 22, 1997, the last sale
price of the Class A Common Stock on the New York Stock Exchange (symbol: BBX)
was $14 15/16 per share. The Class A Common Stock has no voting rights other
than as may be required by Florida law. See "Description of Capital Stock".
Interest on the Debentures is payable semiannually in arrears on each
1 and 1, commencing 1, 1998. The Debentures are redeemable at
any time on or after , 2000 at the option of the Company, in whole or in
part, at fixed redemption prices set forth herein, together with accrued
interest to the redemption date. The Debentures are not subject to any sinking
fund. The Debentures will be unsecured general obligations of the Company
subordinate in right of payment to all existing and future Senior Indebtedness
(as defined herein) of the Company. See "Risk Factors--Subordination."
The Debentures will initially be issued in the form of one or more global
securities to be registered in the name of the nominee of The Depository Trust
Company. See "Description of the Debentures-Book Entry, Delivery and Form."
Prior to this Offering, there has been no public market for the Debentures. The
Company has filed an application to list the Debentures on the Nasdaq SmallCap
Market under the symbol "BANCH".
The offering of the shares of Class A Common Stock and the offering of the
Debentures contemplated hereby are being conducted concurrently; however,
neither offering is contingent upon the other being consummated.
SEE "RISK FACTORS" BEGINNING ON PAGE 12 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
---------------
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS OR DEPOSIT ACCOUNTS AND ARE NOT
INSURED BY THE SAVINGS ASSOCIATION INSURANCE FUND OR THE BANK INSURANCE FUND
OF THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
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<S> <C> <C> <C>
Per Share ..................
Total Class A Common Stock ...
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Per Debenture ............... $1,000
Total Debentures ............ $100,000,000
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Total Offering ...............
</TABLE>
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(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
(2) Before deducting expenses payable by the Company, estimated to be
approximately $ .
(3) The Company has granted the Underwriters a 30-day option to purchase up to
450,000 additional shares of Class A Common Stock at the Price to Public
less Underwriting Discount for the Class A Common Stock and up to
$15,000,000 additional principal amount of Debentures at the Price to
Public less Underwriting Discount for the Debentures, in each case solely
to cover over-allotments, if any. If this option is exercised in full, the
total Price to Public, Underwriting Discount and Proceeds to Company for
the Class A Common Stock will be $ , $ and $ , respectively,
and the total Price to Public, Underwriting Discount and Proceeds to
Company for the Debentures will be $115,000,000, $ and $ ,
respectively. See "Underwriting."
The shares of Class A Common Stock and the Debentures are each offered by
the Underwriters subject to receipt and acceptance by them, prior sale and the
Underwriters' right to reject any order in whole or in part and to withdraw,
cancel or modify either offer without notice. It is expected that delivery of
the shares will be made against payment therefore at the offices of Ryan, Beck
& Co., Inc. on or about , 1997. It is expected that delivery of the
Debentures will be made in book-entry form through the facilities of The
Depository Trust Company on or about , 1997 against payment therefor in
immediately available funds.
RYAN, BECK & CO.
The date of this Prospectus is , 1997
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF EITHER THE CLASS A COMMON
STOCK OR THE DEBENTURES. SUCH TRANSACTIONS MAY INCLUDE THE PURCHASE OF SHARES
OF CLASS A COMMON STOCK OR DEBENTURES FOLLOWING THE PRICING OF THE OFFERING TO
COVER A SYNDICATE SHORT POSITION IN EITHER THE CLASS A COMMON STOCK OR THE
DEBENTURES, AS APPLICABLE, OR FOR THE PURPOSE OF MAINTAINING THE PRICE OF THE
CLASS A COMMON STOCK OR THE DEBENTURES, AS APPLICABLE, THE IMPOSITION OF
PENALTY BIDS AND THE PURCHASE OF SHARES OF CLASS A COMMON STOCK PRIOR TO THE
PRICING OF THE OFFERING FOR THE PURPOSE OF MAINTAINING THE PRICE OF THE CLASS A
COMMON STOCK. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING".
----------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549;
and at the Commission's regional offices at Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission maintains an Internet web site that
contains reports, proxy and information statements and other information
regarding issuers who file electronically with the Commission. The address of
that site is http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments thereto, the "Registration Statement"), of
which this Prospectus is a part, under the Securities Act with respect to the
Class A Common Stock and the Debentures. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. In addition, certain documents filed by the Company with the
Commission have been incorporated in this Prospectus by reference. See
"Incorporation of Certain Documents by Reference." For further information with
respect to the Company, the Class A Common Stock and the Debentures, reference
is made to the Registration Statement, including the exhibits thereto and the
documents incorporated herein by reference. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission or incorporated
by reference herein are not necessarily complete, and, in each instance,
reference is made to the copy of such document so filed for a more complete
description of the matter involved. Each such statement is qualified in its
entirety by such reference. The Registration Statement may be inspected without
charge at the principal office of the Commission in Washington, D.C., and
copies of all or part of it may be obtained from the Commission upon payment of
the prescribed fees.
2
<PAGE>
[GRAPHIC OMITTED]
DESCRIPTION TO COME
The Company's principal executive offices are located at 1750 E. Sunrise
Boulevard, Fort Lauderdale, Florida and its telephone number is (954) 760-5000.
3
<PAGE>
SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE MORE DETAILED
INFORMATION AND FINANCIAL STATEMENTS AND NOTES THERETO APPEARING ELSEWHERE IN
THIS PROSPECTUS. UNLESS OTHERWISE INDICATED, THE INFORMATION IN THIS PROSPECTUS
ASSUMES THAT THE UNDERWRITERS' OVER-ALLOTMENT OPTION WITH RESPECT TO BOTH THE
CLASS A COMMON STOCK AND THE DEBENTURES WILL NOT BE EXERCISED. THE BOARD OF
DIRECTORS PREVIOUSLY DECLARED A FIVE FOR FOUR COMMON SHARE STOCK SPLIT OF THE
COMPANY'S COMMON STOCK, PAR VALUE $.01 PER SHARE, EFFECTED IN THE FORM OF A 25%
STOCK DIVIDEND ISSUED IN SHARES OF CLASS A COMMON STOCK, TO ALL OF THE
COMPANY'S COMMON SHAREHOLDERS IN AUGUST 1997. WHERE APPROPRIATE, AMOUNTS
THROUGHOUT THIS PROSPECTUS HAVE BEEN ADJUSTED TO REFLECT THE STOCK SPLIT.
BANKATLANTIC BANCORP, INC.
BankAtlantic Bancorp, Inc. (the "Company") is a unitary savings bank
holding company organized in April 1994 under the laws of the State of Florida
for the purpose of becoming the holding company for BankAtlantic, A Federal
Savings Bank ("BankAtlantic"). At June 30, 1997, the Company had consolidated
total assets of approximately $2.73 billion and total stockholders' equity of
approximately $153.6 million. The Company owns all of the outstanding capital
stock of BankAtlantic. BFC Financial Corporation ("BFC"), which is controlled
by the Chairman and Vice Chairman of the Company, owned at June 30, 1997
4,876,124 shares or approximately 46% of the Company's issued and outstanding
Class B Common Stock and 4,287,712 shares or approximately 36% of the Company's
issued and outstanding Class A Common Stock.
BankAtlantic is a federally-chartered, federally-insured savings bank
organized in 1952, which provides traditional retail banking services and a
full range of commercial banking products and related financial services. The
principal business of BankAtlantic is attracting checking and savings deposits
from the public and general business customers and using these deposits to
originate commercial real estate and business loans, residential real estate
loans and consumer loans, to purchase wholesale residential loans from third
parties and to make other permitted investments including investments in
mortgage-backed securities, tax certificates and other investment securities.
BankAtlantic operates through 62 branch offices located primarily in Dade,
Broward and Palm Beach Counties in South Florida. As reported by an independent
statistical reporting service, BankAtlantic is currently the largest
independent savings bank headquartered in the State of Florida and second in
size among all independent financial institutions headquartered in the State of
Florida based on deposits at March 31, 1997, the most recent date utilized by
such reporting service. The rapid pace of consolidation among Florida's
depository institutions has been reflected in the acquisition of many local
competitors by out-of-state institutions, which has resulted in many cases, in
remote decision making on larger loans. BankAtlantic considers itself to be a
community bank, able to compete against regional and super regional
institutions by offering personalized service and fast decision making.
Further, the Company believes that this rapid consolidation, including the
recent announcement by NationsBank Corporation of its acquisition of Barnett
Banks, Inc., the largest financial institution headquartered in Florida, will
result in additional opportunities for the Company. Such opportunities include
the potential for new and expanded customer relationships as well as the
opportunity to acquire bank branches from NationsBank which are expected to be
divested by NationsBank as part of its announced integration of the combined
operations.
BankAtlantic's deposit accounts are insured by the Federal Deposit
Insurance Corporation (the "FDIC") primarily through the Savings Association
Insurance Fund (the "SAIF"), with a small portion insured through the Bank
Insurance Fund ("BIF"), both of which are administered by the FDIC.
BankAtlantic is regulated and examined by the Office of Thrift Supervision (the
"OTS") and the FDIC. Such regulation is intended for the protection of
depositors.
4
<PAGE>
OPERATING STRATEGY
The Company's business strategy entails (i) emphasizing commercial real
estate and business loan and consumer loan originations; (ii) focusing on
non-interest income; (iii) promoting transaction, non-interest bearing and
escrow accounts; (iv) improving market penetration through de novo branching
and acquisitions; and (v) increasing the range of banking services. While
pursuing this strategy, management remains committed to maintaining asset
quality, managing interest rate risk and enhancing profitability.
The Company's business strategy has produced the following results:
/bullet/ PROFITABILITY--Implementation of the business strategy,
complemented in recent periods by improving economic conditions and
relatively lower market interest rates, has resulted in net income
of $19.0 million, $18.4 million and $16.8 million for the years
ended December 31, 1996, 1995 and 1994, respectively, and net income
of $13.2 million for the six month period ended June 30, 1997.
Return on average assets, excluding a $7.2 million pre-tax charge in
1996 relating to the SAIF one-time special assessment, was 1.16%,
1.07% and 1.17% for the years ended December 31, 1996, 1995 and
1994, respectively, and 0.98% for the six month period ended June
30, 1997.
/bullet/ ENHANCED DELIVERY SYSTEM--BankAtlantic has enhanced its
delivery system by establishing 32 drive-through facilities, 238
ATMs (including 14 located on cruise ships) and 62 full service
branches with 11 located in Walmart Super Center Stores. In order to
enhance its presence in Dade County, Florida, in February 1995,
BankAtlantic acquired MegaBank, a Miami based commercial bank with
five branches and approximately $120 million in deposits. During
1997, BankAtlantic opened three branches in Dade County with two
additional branches scheduled to open during the fourth quarter of
1997. In October 1996, in an effort to strengthen its market
presence in Broward County, Florida, its primary market,
BankAtlantic acquired Bank of North America ("BNA"). BNA had
approximately $470 million of deposits and provided BankAtlantic
with eight branches, six of which are located in Broward County.
BankAtlantic plans to continue to expand its market presence through
de novo branching, by increasing the number of its ATMs and
drive-through facilities and through acquisitions.
/bullet/ NON-INTEREST INCOME--With a focus on reducing dependence on
net interest income, BankAtlantic has expanded its sources and
amounts of fee income, which is generated primarily through its
commercial banking services, loan servicing function, on-going sales
of servicing rights, ATM's and transaction accounts. Transaction
account and ATM fees increased from $6.4 million in 1994 to $12.5
million during 1996. In August 1997, the Company announced its
desire to diversify its sources of non-interest income by pursuing
investments in real estate, real estate development and real estate
related businesses. See "Risk Factors--Broad Acquisition Authority"
and "--Real Estate Development Activities."
/bullet/ LOW COST ACCOUNTS--Management has focused on attracting
transaction, non-interest bearing and escrow accounts, which carry a
lower cost, generate service fee income and generally represent a
more stable source of funds than higher rate certificate accounts.
At June 30, 1997, transaction accounts represented 50% of total
deposits. BankAtlantic emphasizes such accounts through its full
service branch network which offer a full range of accounts and
services. The flow of deposits, however, is and will continue to be
significantly influenced by economic conditions, prevailing market
interest rates and competition.
/bullet/ LOAN PORTFOLIO DIVERSIFICATION--BankAtlantic emphasizes the
origination of shorter-term and variable interest rate consumer
loans and commercial business and real estate loans (including
commercial construction loans), which, although involving greater
credit risk, are generally
5
<PAGE>
higher yielding than residential loans, have shorter terms and typically
have adjustable interest rates. Since December 31, 1992, such loans have
increased from approximately $203 million to approximately $840 million at
June 30, 1997. In addition, during 1996, BankAtlantic purchased
approximately $465.9 million of wholesale residential mortgage loans
secured by property throughout the United States and during the first six
months of 1997, purchased $216 million of such loans. The purchase of such
loans is an alternative to concentrating funds in investment securities
and is an incremental profit strategy.
THE OFFERING
COMMON STOCK
Common Stock Offered ...... 3,000,000 shares of Class A Common Stock
(3,450,000 shares if the Underwriters'
over-allotment option is exercised in full).
Common Stock to be outstanding
after the Offering:
Class A Common Stock(1) ... 14,597,914 shares
Class B Common Stock(2) ... 10,677,778 shares
Voting Rights ............... Holders of Class A Common Stock have no
voting rights, except as may be required by
Florida law. Holders of Class B Common Stock
have one vote per share. See "Description of
Capital Stock--Voting Rights."
Dividends .................. Holders of Class A Common Stock are entitled
to receive cash dividends equal to at least
110% of any cash dividends declared and paid on
Class B Common Stock. Non-cash distributions on
Class A Common Stock must be identical to those
declared and issued on Class B Common Stock,
except that a distribution to holders of Class
A Common Stock may be declared and issued in
Class A Common Stock while a distribution to
holders of Class B Common Stock may be declared
and issued in either Class A Common Stock or
Class B Common Stock. See "Description of
Capital Stock--Dividends and Other
Distributions."
Use of Proceeds ............ The net proceeds will be contributed by the
Company as capital to BankAtlantic where it
will be used to support BankAtlantic's growth,
both internal and via acquisitions, including
those expected to result from the continuing
consolidation of the Florida banking market.
See "Use of Proceeds."
Ticker Symbols:
Class A Common Stock ...... BBX (NYSE)
Class B Common Stock ...... BANC (Nasdaq National Market)
- ----------------
(1) Does not include an aggregate of 7,083,264 shares of Class A Common Stock
issuable upon conversion of the 63/4% Convertible Debentures or upon
exercise of currently exercisable stock options and does not include the
shares of Class A Common Stock issuable upon conversion of the Debentures
offered hereby.
(2) Does not include 413,769 shares of Class B Common Stock issuable upon
exercise of currently exercisable stock options.
6
<PAGE>
DEBENTURES
Securities Offered ......... $100,000,000 in principal amount of %
Convertible Subordinated Debentures due 2007.
Use of Proceeds ............ The net proceeds will be contributed by the
Company as capital to BankAtlantic where it
will be used to support BankAtlantic's growth,
both internal and via acquisitions, including
those expected to result from the continuing
consolidation of the Florida banking market.
See "Use of Proceeds."
Convertibility ............ Convertible into Class A Common Stock at any
time prior to maturity or redemption at $
per share, subject to adjustment in certain
circumstances.
Interest payment dates .... 1 and 1, commencing 1, 1998
Maturity Date ............. , 2007
Optional Redemption ......... The Debentures are redeemable at any time
after , 2000, in whole or in part, at
the option of the Company on not less than 30
days notice, at fixed redemption prices as set
forth herein, together with accrued interest to
the date fixed for redemption. Payment of
principal and interest on the Debentures may be
accelerated in the case of certain events of
default. See "Description of the Debentures."
Subordination ............... The payment of principal and premium, if any,
and interest on the Debentures is subordinated
to all existing and future Senior Indebtedness.
Senior Indebtedness is defined as any
indebtedness or liability of the Company,
whether existing on or created or incurred
after the date of issuance of the Debentures,
which is not expressly by its terms subordinate
or pari passu in right of payment to the
Debentures. The Company currently has no Senior
Indebtedness. The Debentures will rank PARI
PASSU with the Company's outstanding $21.0
million principal amount of 9% Debentures and
$57.3 million principal amount of 63/4%
Convertible Debentures. The Indenture does not
limit the incurrence of indebtedness, including
Senior Indebtedness, by the Company and its
subsidiaries. See "Description of the
Debentures--Subordination."
Certain Restrictions ...... The Indenture, among its other provisions,
restricts the ability of the Company to pay
dividends on, or purchase, redeem or acquire
its capital stock or return any capital or
distribute any assets to holders of capital
stock as such, if at the time of such dividend
declaration or date of any such redemption,
purchase, payment or distribution, the
7
<PAGE>
Company is in default in the payment of
interest on the Debentures or an Event of
Default has occurred. The Indenture also
prohibits the Company from consolidating or
merging with another entity unless: (i) such
other entity assumes the Company's obligations
under the Indenture, (ii) immediately after
such merger or consolidation takes effect, the
Company will not be in Default (as defined
herein) under the Indenture, and (iii) the
Company has delivered to the Indenture trustee
an appropriate opinion of counsel. The
Indenture does not prohibit or restrict the
Company from selling additional shares of
capital stock or other debt securities nor
from pledging BankAtlantic's capital stock.
Further, BankAtlantic is not restricted from
issuing any shares of BankAtlantic's capital
stock or other debt securities. See
"Description of the Debentures--Restrictions
on Dividends and Other Distributions."
Events of Default ......... Events of default include: (i) the failure by
the Company to pay principal of or premium, if
any, on the Debentures at maturity or upon
redemption, (ii) the failure by the Company to
pay interest on any of the Debentures and such
failure continues for a period of 30 days,
(iii) the failure by the Company to comply with
any of its other agreements or covenants in, or
provisions of, the Indenture and such default
continues for a period of 60 days after receipt
of notice of such failure and (iv) certain
events of bankruptcy, insolvency or
reorganization of the Company. See "Description
of the Debentures."
Trustee ..................... First Trust National Association
Nasdaq SmallCap Market
Symbol ..................... BANCH
RISK FACTORS
Before making an investment decision, prospective investors should
consider all of the information contained in this Prospectus. In particular,
prospective investors should evaluate the factors discussed under "Risk
Factors," including, but not limited to, the economic and business risks
associated with economic conditions in South Florida and the Company's
investment and loan portfolio in particular, the potential adverse impact on
the Company's operations and profitability of changes in interest rates and
future legislation, the highly competitive nature of the Company's business,
the Company's recent rapid growth and increased operating expenses, the
Company's broad acquisition authority and its announced desire to engage in
real estate development activities and regulatory limitations on BankAtlantic's
ability to pay dividends.
8
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
OF BANKATLANTIC BANCORP, INC.
<TABLE>
<CAPTION>
AT OR FOR THE
SIX MONTHS
ENDED JUNE 30,
-------------------------------------------------
1997 1996
------------------------ ------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
OPERATING RESULTS:
Net interest income ....................................... $ 47,934 $ 34,134
Provision for loan losses ................................. 5,162 2,395
----------- -----------
Net interest income after provision for loan losses ...... 42,772 31,739
----------- -----------
Non-interest income ........................................ 18,658 13,548
----------- -----------
Non-interest expenses ....................................... 39,843 28,200
----------- -----------
Income before income taxes and extraordinary item ......... 21,587 17,087
Provision for income taxes ................................. 8,425 6,828
----------- -----------
Income before extraordinary item ........................... 13,162 10,259
Extraordinary item net of taxes ........................... 0 0
----------- -----------
Net income ................................................ 13,162 10,259
----------- -----------
Total dividends on non-cumulative preferred stock ......... 0 0
----------- -----------
Net income available for common shares ..................... $ 13,162 $ 10,259
=========== ===========
Net income per common and common equivalent share ......... $ 0.54 $ 0.44
=========== ===========
Net income per common and common equivalent share
assuming full dilution .................................... $ 0.46 $ 0.44
=========== ===========
Book value per common share .............................. $ 6.83 $ 6.07
=========== ===========
Tangible book value per share .............................. $ 5.60 $ 5.61
=========== ===========
BALANCE SHEET DATA:
Total assets ............................................. $ 2,730,474 $ 1,975,287
Loans receivable-net ....................................... 1,933,980 1,107,497
Debt securities available for sale ........................ 449,422 600,094
Investment and trading account securities, net ............ 68,587 80,187
Mortgage servicing rights ................................. 30,941 29,838
Cost over fair value of net assets acquired and
other intangibles ....................................... 27,692 10,768
Deposits ................................................... 1,768,087 1,361,992
Guaranteed preferred beneficial interests in the Company's
Junior Subordinated Debentures ........................... 74,750 0
Subordinated debentures, capital notes and note payable ... 78,300 21,000
Total stockholders' equity ................................. 153,575 141,651
PERFORMANCE RATIOS:
Net interest spread (during period) ........................ 3.54% 3.91%
Interest rate margin (during period) ..................... 3.85 4.30
Average equity to average assets ........................... 5.71 7.49
Return on average equity** ................................. 17.19 15.91
Return on average assets** ................................. 0.98 1.19
Efficiency ratio** .......................................... 59.83 59.14
Net loan charge-offs as a percent of average
outstanding loans - annualized ............................. 0.40 0.49
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real estate owned ...... 1.23 1.37
Total assets ............................................. 0.92 0.84
Allowances for loan losses and tax certificates as a percent
of non-performing assets ................................. 110.59 120.54
RATIO OF EARNINGS TO FIXED CHARGES:
Including interest on deposits ........................... 1.39 1.55
Excluding interest on deposits ........................... 2.02 3.57
<CAPTION>
AT OR FOR THE YEARS ENDED
DECEMBER 31,
---------------------------------
1996
---------------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S>
<S> <C>
OPERATING RESULTS:
Net interest income ....................................... $ 75,600
Provision for loan losses ................................. 5,844
------------
Net interest income after provision for loan losses ...... 69,756
------------
Non-interest income ........................................ 33,737
------------
Non-interest expenses ....................................... 72,241(B)
------------
Income before income taxes and extraordinary item ......... 31,525
Provision for income taxes ................................. 12,241
------------
Income before extraordinary item ........................... 19,011
Extraordinary item net of taxes ........................... 0
------------
Net income ................................................ 19,011
------------
Total dividends on non-cumulative preferred stock ......... 0
------------
Net income available for common shares ..................... $ 19,011
============
Net income per common and common equivalent share ......... $ 0.81
============
Net income per common and common equivalent share
assuming full dilution .................................... $ 0.74
============
Book value per common share .............................. $ 6.44
============
Tangible book value per share .............................. $ 5.17
============
BALANCE SHEET DATA:
Total assets ............................................. $ 2,605,527
Loans receivable-net ....................................... 1,824,856
Debt securities available for sale ........................ 439,345
Investment and trading account securities, net ............ 54,511
Mortgage servicing rights ................................. 25,002
Cost over fair value of net assets acquired and
other intangibles ....................................... 29,008
Deposits ................................................... 1,832,780
Guaranteed preferred beneficial interests in the Company's
Junior Subordinated Debentures ........................... 0
Subordinated debentures, capital notes and note payable ... 78,500
Total stockholders' equity ................................. 147,704
PERFORMANCE RATIOS:
Net interest spread (during period) ........................ 3.76%
Interest rate margin (during period) ..................... 4.08
Average equity to average assets ........................... 6.70
Return on average equity** ................................. 17.34
Return on average assets** ................................. 1.16
Efficiency ratio** .......................................... 59.52
Net loan charge-offs as a percent of average
outstanding loans - annualized ............................. 0.47
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real estate owned ...... 1.26
Total assets ............................................. 0.93
Allowances for loan losses and tax certificates as a percent
of non-performing assets ................................. 112.79
RATIO OF EARNINGS TO FIXED CHARGES:
Including interest on deposits ........................... 1.40
Excluding interest on deposits ........................... 2.34
<CAPTION>
AT OR FOR THE YEARS ENDED
DECEMBER 31,
------------------------------------ --------------------------
1995 1994
------------------------------------ --------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
OPERATING RESULTS:
Net interest income ....................................... $ 64,391 $ 57,118
Provision for loan losses ................................. 4,182 2,299
----------- ------------
Net interest income after provision for loan losses ...... 60,209 54,819
----------- ------------
Non-interest income ........................................ 19,388 13,763
----------- ------------
Non-interest expenses ....................................... 51,160 42,085
----------- ------------
Income before income taxes and extraordinary item ......... 28,437 26,497
Provision for income taxes ................................. 10,018 9,662
----------- ------------
Income before extraordinary item ........................... 18,419 16,835
Extraordinary item net of taxes ........................... 0 0
----------- ------------
Net income ................................................ 18,419 16,835
----------- ------------
Total dividends on non-cumulative preferred stock ......... 2,030 (A) 880
----------- ------------
Net income available for common shares ..................... $ 16,389 $ 15,955
=========== ============
Net income per common and common equivalent share ......... $ 0.78 (A) $ 0.78
=========== ============
Net income per common and common equivalent share
assuming full dilution .................................... $ 0.77 (A) $ 0.78
=========== ============
Book value per common share .............................. $ 5.82 $ 4.90
=========== ============
Tangible book value per share .............................. $ 5.27 $ 4.90
=========== ============
BALANCE SHEET DATA:
Total assets ............................................. $ 1,750,689 $ 1,539,653
Loans receivable-net ....................................... 828,630 546,396
Debt securities available for sale ........................ 691,803 53,969
Investment and trading account securities, net ............ 49,856 211,776
Mortgage servicing rights ................................. 20,738 20,584
Cost over fair value of net assets acquired and
other intangibles ....................................... 11,521 0
Deposits ................................................... 1,300,377 1,085,782
Guaranteed preferred beneficial interests in the Company's
Junior Subordinated Debentures ........................... 0 0
Subordinated debentures, capital notes and note payable ... 21,001 0
Total stockholders' equity ................................. 120,561 105,520
PERFORMANCE RATIOS:
Net interest spread (during period) ........................ 3.65% 4.07%
Interest rate margin (during period) ..................... 4.04 4.32
Average equity to average assets ........................... 6.66 6.86
Return on average equity** ................................. 16.03 17.07
Return on average assets** ................................. 1.07 1.17
Efficiency ratio** .......................................... 61.07 59.37
Net loan charge-offs as a percent of average
outstanding loans - annualized ........................... 0.45 0.59
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real estate owned ...... 2.37 3.66
Total assets ............................................. 1.23 1.51
Allowances for loan losses and tax certificates as a percent
of non-performing assets ................................. 96.06 82.86
RATIO OF EARNINGS TO FIXED CHARGES:
Including interest on deposits ........................... 1.43 1.63
Excluding interest on deposits ........................... 2.41 3.50
<CAPTION>
AT OR FOR THE YEARS ENDED
DECEMBER 31,
-------------------------- -------------------------
1993 1992
-------------------------- -------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
OPERATING RESULTS:
Net interest income ....................................... $ 58,516 $ 60,909
Provision for loan losses ................................. 3,450 6,650
------------ ------------
Net interest income after provision for loan losses ...... 55,066 54,259
------------ ------------
Non-interest income ........................................ 11,638 17,051
------------ ------------
Non-interest expenses ....................................... 43,533 46,817
------------ ------------
Income before income taxes and extraordinary item ......... 23,171 24,493
Provision for income taxes ................................. 7,093 9,201
------------ ------------
Income before extraordinary item ........................... 16,078 15,292
Extraordinary item net of taxes ........................... 0 756
------------ ------------
Net income ................................................ 16,078 16,048
------------ ------------
Total dividends on non-cumulative preferred stock ......... 880 880
------------ ------------
Net income available for common shares ..................... $ 15,198 $ 15,168
============ ============
Net income per common and common equivalent share ......... $ 0.82 $ 1.06
============ ============
Net income per common and common equivalent share
assuming full dilution .................................... $ 0.82 $ 0.92
============ ============
Book value per common share .............................. $ 4.16 $ 4.05
============ ============
Tangible book value per share .............................. $ 4.16 $ 4.02
============ ============
BALANCE SHEET DATA:
Total assets ............................................. $ 1,359,195 $ 1,303,071
Loans receivable-net ....................................... 485,956 556,662
Debt securities available for sale ........................ 83,116 137,963
Investment and trading account securities, net ............ 97,701 120,424
Mortgage servicing rights ................................. 19,833 7,655
Cost over fair value of net assets acquired and
other intangibles ....................................... 0 0
Deposits ................................................... 1,076,360 1,108,115
Guaranteed preferred beneficial interests in the Company's
Junior Subordinated Debentures ........................... 0 0
Subordinated debentures, capital notes and note payable ... 0 9,524
Total stockholders' equity ................................. 90,652 66,165
PERFORMANCE RATIOS:
Net interest spread (during period) ........................ 4.67% 4.60%
Interest rate margin (during period) ..................... 4.90 4.78
Average equity to average assets ........................... 5.85 4.07
Return on average equity ................................. 21.32 27.09
Return on average assets ................................. 1.25 1.10
Efficiency ratio .......................................... 62.03 60.22
Net loan charge-offs as a percent of average
outstanding loans - annualized ............................. 0.56 0.60
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real estate owned ...... 3.34 3.80
Total assets ............................................. 1.47 2.07
Allowances for loan losses and tax certificates as a percent
of non-performing assets ................................. 99.90 66.88
RATIO OF EARNINGS TO FIXED CHARGES:
Including interest on deposits ........................... 1.63 1.43
Excluding interest on deposits ........................... 5.67 3.62
</TABLE>
- ----------------
(A) The excess of the redemption price above the recorded amount of preferred
stock is considered a preferred stock dividend. The impact of the October
1995 preferred stock redemption for the year ended December 31, 1995 was a
reduction of $0.06 for primary and fully diluted earnings per share.
(B) Includes the $7.2 million SAIF one-time special assessment.
** Excludes the effect of the SAIF one-time special assessment of $7.2 million
during the year ended December 31, 1996.
9
<PAGE>
RECENT DEVELOPMENTS
For the quarter ended September 30, 1997, the Company reported net income
of $6.4 million, or $0.23 fully diluted earnings per common share, compared to
net income of $1.1 million, or $0.04 fully diluted earnings per share, for the
comparable period in 1996, which included a SAIF one-time special assessment
resulting in a pre-tax charge of $7.2 million which reduced net income by $4.4
million or $0.18 fully diluted earnings per common share.
For the nine months ended September 30, 1997, the Company's earnings were
$19.6 million, or $0.68 fully diluted earnings per common share, compared to
$11.4 million, or $0.46 fully diluted earnings per common share for the nine
months ended September 30, 1996. The SAIF one-time special assessment noted
above reduced fully diluted earnings per common share by $0.17 during the 1996
period.
For the three months ended September 30, 1997, the Company's net interest
income after provision for loan losses increased to $20.2 million, compared to
$17.0 million for the comparable period in 1996. This increase reflects the
impact of the fourth quarter 1996 acquisition of Bank of North America,
increased loan originations and significant purchases of wholesale residential
loans. The Company's non-interest income for third quarter 1997 increased 54%
to $11.3 million, compared to $7.3 million in the same quarter of 1996.
Contributing factors were increased transaction fees, gains on the sales of
loans available for sale, trading account gains and losses, sales of securities
available for sale and gains on sales of property and equipment. Non-interest
expenses for the recent quarter were $20.9 million, compared to $22.4 million
in the same period of 1996. The 1996 period included the $7.2 million one time
SAIF special assessment. Employee compensation and benefits and occupancy and
equipment costs increased $2.6 million and $1.8 million, respectively, in the
third quarter of 1997 compared to the 1996 third quarter, primarily due to the
October 1996 acquisition of Bank of North America, the opening of new branch
offices and the fourth quarter 1996 transfer of a substantial portion of its
data processing functions to an outside service bureau. The increases in
employee compensation and benefits and occupancy and equipment costs of $7.0
million and $5.1 million, respectively, for the nine months ended September 30,
1997 compared to the comparable 1996 period were also the result of the above
factors.
Stockholders' equity increased to $156.6 million at September 30, 1997,
compared to $139.7 million at September 30, 1996.
<TABLE>
<CAPTION>
AT SEPTEMBER 30,
1997
-----------------------
(DOLLARS IN THOUSANDS)
<S> <C>
BALANCE SHEET DATA:
Total assets ............................................................... $ 2,844,996
Loans receivable--net ...................................................... 1,963,227
Securities available for sale ............................................. 495,093
Investment and trading account securities, net .............................. 64,190
Mortgage servicing rights ................................................... 31,952
Cost over fair value of net assets acquired ................................. 26,815
Deposits .................................................................. 1,763,373
Guaranteed preferred beneficial interests in the Company's Junior Subordinated
Debentures ............................................................... 74,750
Subordinated debentures ................................................... 78,300
Total stockholders' equity ................................................ 156,558
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
AT OR FOR THE
THREE MONTHS ENDED
SEPTEMBER 30,
-----------------------------------------
1997 1996
------------------- ---------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
OPERATING RESULTS:
Net interest income ........................... $ 23,826 $ 18,911
Provision for loan losses ..................... 3,671 1,869
-------- ------------
Net interest income after provision
for loan losses ........................... 20,155 17,042
-------- ------------
Non-interest income ........................... 11,273 7,307
-------- ------------
Non-interest expenses ........................ 20,901 22,372(A)
-------- ------------
Income before income taxes .................. 10,527 1,977
Provision for income taxes .................. 4,098 886
-------- ------------
Net income available for common shares ...... $ 6,429 $ 1,091
======== ============
Net income per common and common
equivalent share ........................... $ 0.27 $ 0.05
======== ============
Net income per common and common equivalent
share assuming full dilution ............... $ 0.23 $ 0.04
======== ============
Book value per common share .................. $ 7.03 $ 6.07
======== ============
Tangible book value per share ............... $ 5.82 $ 5.62
======== ============
PERFORMANCE RATIOS:
Net interest spread (during period) ......... 3.41% 3.94%
Interest rate margin (during period) ......... 3.76 4.36
Average equity to average assets ............ 5.53 7.01
Return on average equity ** .................. 16.78 15.41
Return on average assets ** .................. 0.93 1.08
Efficiency ratio ** ........................... 59.55 58.02
Net loan charge-offs as a percent of average
outstanding loans - annualized ................ 0.51 0.52
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real
estate owned ................................. 10.88 11.73
Total assets ................................. 0.79 0.73
<CAPTION>
AT OR FOR THE
NINE MONTHS ENDED
SEPTEMBER 30,
----------------------------------------------
1997 1996
--------------------- ------------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
OPERATING RESULTS:
Net interest income ........................... $ 71,760 $ 53,045
Provision for loan losses ..................... 8,833 4,264
--------- ------------
Net interest income after provision
for loan losses ........................... 62,927 48,781
--------- ------------
Non-interest income ........................... 29,931 20,855
--------- ------------
Non-interest expenses ........................ 60,744 50,572(A)
--------- ------------
Income before income taxes .................. 32,114 19,064
Provision for income taxes .................. 12,523 7,714
--------- ------------
Net income available for common shares ...... $ 19,591 $ 11,350
========= ============
Net income per common and common
equivalent share ........................... $ 0.81 $ 0.48
========= ============
Net income per common and common equivalent
share assuming full dilution ............... $ 0.68 $ 0.46
========= ============
Book value per common share .................. $ 7.03 $ 6.07
========= ============
Tangible book value per share ............... $ 5.82 $ 5.62
========= ============
PERFORMANCE RATIOS:
Net interest spread (during period) ......... 3.48% 3.82%
Interest rate margin (during period) ......... 3.81 4.22
Average equity to average assets ............ 5.62 7.20
Return on average equity ** .................. 17.13 15.97
Return on average assets ** .................. 0.96 1.15
Efficiency ratio ** ........................... 59.73 58.74
Net loan charge-offs as a percent of average
outstanding loans - annualized ................ 0.43 0.50
NON-PERFORMING ASSETS AS A PERCENT OF:
Total loans, tax certificates and real
estate owned ................................. 10.88 11.73
Total assets ................................. 0.79 0.73
</TABLE>
- ----------------
(A) Includes the $7.2 million SAIF one-time special assessment.
** Excludes the effect of the SAIF one-time special assessment of $7.2 million
during the three and nine months ended September 30, 1996.
11
<PAGE>
RISK FACTORS
An investment in the Class A Common Stock or the Debentures involves a
high degree of risk. Prospective investors should carefully consider, together
with the other information contained and incorporated by reference in this
Prospectus, the following factors in evaluating the Company and its business
before purchasing the Class A Common Stock or the Debentures offered hereby.
Prospective investors should note, in particular, that this Prospectus contains
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the "Securities Act"), and Section 21E of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that involve
substantial risks and uncertainties. When used in this Prospectus, or in the
documents incorporated by reference herein, the words "anticipate", "believe",
"estimate", "may", "intend" and "expect" and similar expressions identify
certain of such forward-looking statements. Actual results, performance or
achievements could differ materially from those contemplated, expressed or
implied by the forward-looking statements contained herein. The considerations
listed below represent certain important factors the Company believes could
cause such results to differ. These considerations are not intended to
represent a complete list of the general or specific risks that may affect the
Company. It should be recognized that other risks, including general economic
factors and expansion and acquisition strategies, may be significant, presently
or in the future, and the risks set forth below may affect the Company to a
greater extent than indicated.
SOURCES OF PAYMENTS TO HOLDERS OF DEBENTURES; ABILITY TO PAY DIVIDENDS;
POSSIBLE ISSUANCE OF ADDITIONAL SECURITIES
Although the Company holds all of the outstanding capital stock of
BankAtlantic, the Company is a legal entity separate and distinct from
BankAtlantic. The ability of the Company to pay the interest on and principal
of the Debentures and to pay dividends on the Class A Common Stock, including
any Class A Common Stock issued upon conversion of any Debentures, will be
significantly dependent on the ability of BankAtlantic to pay dividends to the
Company in amounts sufficient to service the Company's obligations, including
its obligation to pay interest semi-annually on its outstanding 9% Debentures
and the 63/4% Convertible Debentures and to make any other payments with
respect to securities issued by the Company in the future which are pari passu
or have a preference over the Debentures or the Class A Common Stock, as
applicable, with respect to the payment of principal, interest or dividends.
There is no restriction on the ability of the Company to issue securities which
are pari passu or have a preference over the Debentures or the Class A Common
Stock nor is there any restriction on the ability of BankAtlantic to issue
additional capital stock or incur additional indebtedness. The Company also has
outstanding 91/2% Junior Subordinated Debentures due 2027 (the "91/2% Junior
Subordinated Debentures") which were issued in April 1997 in connection with a
$74.75 million offering of 91/2% Cumulative Trust Preferred Securities by a
wholly owned subsidiary of the Company. The 91/2% Junior Subordinated
Debentures are junior in right of payment to the Debentures offered herein. As
of June 30, 1997, the Company had not yet invested all of the proceeds of the
April 1997 offering.
BankAtlantic's ability to pay dividends or make other capital
distributions to the Company is governed by OTS regulations and is based on
BankAtlantic's regulatory capital levels and net income. Under these
regulations, "capital distributions" are defined as cash dividends, payments by
a savings association to repurchase or otherwise acquire its shares, payments
to shareholders of another entity in a cash-out merger, and other distributions
charged against capital. An institution that has regulatory capital that is at
least equal to its fully phased-in capital requirements (both before and after
giving effect to the distribution), and that has not been notified that it "is
in need of more than normal supervision" is a Tier 1 association. Upon prior
notice to, and non-objection by, the OTS, a Tier 1 association is permitted to
make capital distributions during a calendar year of up to the greater of (i)
100% of net income for the current calendar year, plus 50% of its capital
surplus ("surplus" being the amount of capital in excess of its fully phased-in
capital requirements) or (ii) 75% of its net income over the most recent four
quarters. Any additional capital distributions would require prior regulatory
approval. As of June 30, 1997, BankAtlantic's capital exceeded its fully
phased-in capital requirements
12
<PAGE>
by approximately $59.6 million and BankAtlantic qualified as a Tier 1
association under applicable OTS regulations. There is no assurance, however,
that BankAtlantic will remain a Tier 1 association or that it will be in a
position to make capital distributions to the Company in an amount sufficient
for the Company to service the Debentures or to pay dividends on the Class A
Common Stock. Additionally, all capital distributions of BankAtlantic are
subject to the OTS' right to object to a distribution on safety and soundness
grounds.
SUBORDINATION
The Debentures are subordinated to all Senior Indebtedness of the Company.
Senior Indebtedness is generally defined as any indebtedness of the Company,
whether existing on or created or incurred after the date of issuance of the
Debentures, which is not expressly by its terms subordinate or pari passu in
right of payment to the Debentures. The Debentures rank pari passu in right of
payment to the Company's outstanding 9% Debentures and the 63/4% Convertible
Debentures. Only the 91/2% Junior Subordinated Debentures and the capital stock
of the Company are currently junior in right of payment to the Debentures. As
of June 30, 1997, the Company had no Senior Indebtedness and had outstanding
$21 million in principal amount of 9% Debentures and $57.3 million in principal
amount of 63/4% Convertible Debentures ranking on a par with the Debentures.
The Indenture does not limit the incurrence of additional indebtedness by the
Company, including Senior Indebtedness, or of additional indebtedness by
BankAtlantic or other subsidiaries.
The Debentures will be obligations of the Company only, are not
obligations of or deposits in BankAtlantic and are not insured by any
government agency. Because the Company is a holding company, its rights and the
rights of its creditors, including the holders of the Debentures, to
participate in any distribution of the assets of a subsidiary, including
BankAtlantic (either as a shareholder or as a creditor), upon a liquidation,
reorganization or insolvency of such subsidiary (and the consequent right of
the holders of the Debentures to participate in those assets) will be subject
to the claims of the creditors of the subsidiary (including depositors in
BankAtlantic). If the Company is a creditor of a subsidiary, the claims of the
Company would be subject to any prior security interest in the assets of the
subsidiary and any indebtedness of the subsidiary senior to that of the
Company. At June 30, 1997 the Company had approximately $2.58 billion of
liabilities (including $1.77 billion of deposits) and indebtedness outstanding
and stockholders' equity of approximately $153.6 million.
LIMITED COVENANTS
The covenants in the Indenture are limited and do not protect holders of
Debentures in the event of a material adverse change in the Company's financial
condition or results of operations. Additionally, as more fully described in
"Description of the Debentures," payment of principal of the Debentures can
only be accelerated upon a default in the payment of principal, premium, if
any, or interest, a default in the performance of any of the covenants or
agreements in the Indenture or upon certain events of bankruptcy, insolvency or
reorganization of the Company. Neither the Debentures nor the Indenture contain
any provisions which will restrict the Company from incurring, assuming or
becoming liable with respect to any indebtedness or other obligations, whether
secured or unsecured. Neither the Debentures nor the Indenture contain any
financial ratios or specified levels of liquidity to which the Company must
adhere. In addition, neither the Debentures nor the Indenture contain any
provision which requires the Company to repurchase, redeem or modify the terms
of the Debentures upon a change in control or other events involving the
Company which may adversely affect the creditworthiness of the Debentures.
Therefore, neither the covenants nor the other provisions of the Indenture
should be a significant factor in evaluating whether the Company will be able
to comply or will comply with its obligations under the Debentures. See
"Description of the Debentures."
ABSENCE OF PUBLIC MARKET FOR DEBENTURES
Prior to the Offering, there has been no public market for the Debentures.
Although the Company has applied to have the Debentures listed on the Nasdaq
SmallCap Market, there is no assurance that
13
<PAGE>
the Debentures will be approved for listing, that any active trading market
therefor will develop, or, if any such market develops, that it will be
sustained. Accordingly, holders of Debentures may experience difficulty in
reselling them or may be unable to sell them at all. Additionally, since the
prices of securities generally fluctuate, there can be no assurance that
purchasers in this Offering will be able to sell the Debentures at or above the
purchase price.
LACK OF VOTING RIGHTS OF CLASS A COMMON STOCK; VOTING CONTROL
Holders of the Class B Common Stock currently possess all voting power of
the Company. Holders of the Class A Common Stock will have no right to vote in
connection with the election of the directors of the Company or any other
matter except as provided by Florida law. BFC, which currently owns 4,876,124
shares or approximately 46% of the Company's issued and outstanding Class B
Common Stock, is in a position to significantly influence the policies and
management of the Company and effectively elect a majority of the Company's
Board of Directors. Additionally, Alan B. Levan, the Chairman of the Board and
Chief Executive Officer of the Company and BankAtlantic and John E. Abdo, a
director of the Company and the Vice-Chairman of the Board and Chairman of the
Executive Committee of BankAtlantic, beneficially own approximately 46% and 16%
of the shares of BFC, respectively.
LOAN PORTFOLIO CONSIDERATIONS
Loans receivable, net at BankAtlantic increased by approximately $1.1
billion or 133.4% at June 30, 1997, from December 31, 1995. All components of
lending increased in 1996 and the first six months of 1997 due to approximately
$395.0 million of loans acquired in connection with the BNA acquisition, $682.1
million of wholesale residential loan purchases and an increase in loan
fundings associated with residential real estate, construction and development
and consumer loans of $111.0 million during 1996 and $20.2 million during the
first six months of 1997 compared to comparable periods in 1995. Commercial
real estate and construction loans at BankAtlantic increased by approximately
$239.7 million or 50.7% at June 30, 1997 from December 31, 1995. With respect
to development and construction loans, the underlying real estate projects may
be in the early stages of development. Further, these loans are concentrated in
Broward, Dade and Palm Beach Counties, Florida. Recent increases in funding
availability from competitors for commercial real estate projects could result
in over building and a decline in real estate values. A decline in the real
estate market, or in economic conditions in general, in Broward, Dade and Palm
Beach counties could have a material adverse effect on BankAtlantic's financial
condition and results of operations. With respect to the wholesale residential
loan purchases, the real estate securing such loans is generally located
outside BankAtlantic's primary market area. Future purchases of residential
loans will more than likely consist of loans secured by properties located
outside BankAtlantic's primary market area. Such loans are subject to risks
associated with the economy where the collateral is located and additional
risks regarding collection.
CONSUMER LOAN PORTFOLIO--INDIRECT AUTOMOBILE LENDING
During the past several years, the Company has experienced significant
growth in its consumer loan portfolio. Part of this growth was the result the
Company's acquisition of financial institutions which had originated consumer
loans in prior years. Consumer loans (excluding home equity loans) increased to
$255 million at June 30, 1997 from $49 million at December 31, 1994. Further,
the consumer loan portfolio consists primarily of indirect automobile loans
(loans funded by BankAtlantic through automobile dealers rather than funded
directly by BankAtlantic to its retail customers). Consumer loans, especially
indirect automobile loans, present more credit risk to the Company than other
types of loans such as home equity or residential real estate loans. During the
six months ended June 30, 1997, consumer loan charge-offs were $3.7 million, of
which $3.2 million was attributable to indirect automobile loans.
14
<PAGE>
As a result of the nature of indirect automobile loans, the growth in the
consumer loan portfolio and the large number of loans in the portfolio that
were not originated by BankAtlantic, there is no assurance that there will not
be additional losses associated with the consumer loan portfolio in the future.
RECENT RAPID GROWTH AND INCREASED OPERATING EXPENSES
During the last two years, BankAtlantic has experienced rapid and
significant growth. Total assets of BankAtlantic have increased from $1.75
billion at December 31, 1995, to $2.73 billion at June 30, 1997 due in part to
BankAtlantic's acquisition of MegaBank and BNA, two commercial banks located in
Southern Florida. In recent years, BankAtlantic also has experienced a
significant level of loan growth. BankAtlantic's loan portfolio increased from
$828.6 million at December 31, 1995, to $1.93 billion at June 30, 1997. Much of
this loan growth is attributable to the acquisitions and the purchase of
wholesale residential loans.
To support and manage the expanded operations of BankAtlantic and to
provide management resources to support further expansion and growth,
BankAtlantic has hired additional personnel and has taken steps to enhance and
expand its operational and management information systems.
While BankAtlantic continues to monitor its rapid growth and the adequacy
of management and resources available to support such growth, there can be no
assurance that BankAtlantic will be successful in managing all elements
relating to its rapid growth. The growth and expansion of operations through
mergers and acquisitions and internal growth has resulted in a significant
increase in assets, loans and deposits since December 31, 1995, as well as
increases in net interest income, non-interest income and non-interest
expenses. Employee compensation and benefits increased 32% from $7.1 million to
$9.3 million over the last six month period and occupancy and equipment costs
increased 46% from $2.9 million to $4.2 million during the same period. Such
increased expenses were primarily attributable to the BNA acquisition, the
opening of new branch offices and the transfer of a substantial portion of the
data processing functions to an outside service bureau. Expenses associated
with such growth have had, and expenses associated with additional future
growth may have, an adverse impact on earnings.
There can be no assurance that BankAtlantic will continue to experience
rapid growth, or any growth in the future and, to the extent that it does
experience continued growth, there is no assurance that BankAtlantic will be
able to adequately and profitably manage such growth.
BROAD ACQUISITION AUTHORITY
Under applicable law, the Company generally has broad authority with few
restrictions to engage in various types of business activities, including
investments in real estate, real estate development and real estate related
businesses. In June 1997 the Company entered into an agreement to acquire the
controlling interest in a builder of residential communities in South Florida.
While the Company elected in August 1997 not to proceed with this acquisition,
the Company has indicated that it may in the future pursue an acquisition for
initiating its real estate activities as a means to diversify the Company's
sources of non-interest income and to increase non-interest income. To the
extent that the Company makes acquisitions in businesses not engaged in banking
activities, including those engaged in real estate and real estate development,
such acquisitions could result in material changes to the scope of the
Company's business and would subject the Company to the risks inherent in the
businesses of the acquired companies.
REAL ESTATE DEVELOPMENT ACTIVITIES
The Company has indicated that it intends to engage in real estate
investment and development activities. In addition to the possible acquisition
of real estate related businesses, such activities may include real estate
development joint ventures in which the Company contributes a significant
amount
15
<PAGE>
of equity with the expectation of profit sharing once the project is completed.
BankAtlantic may also provide financing to such future ventures on an arms'
length basis, in accordance with its usual lending and underwriting policies.
Real estate activities are highly speculative and represent a high degree
of risk primarily because of the cyclical nature of the real estate industry
and the uncertainty of future market conditions. In particular the real estate
and homebuilding industries are adversely affected by decreases in employment
levels, the availability and cost of financing and decreases in demand. Real
estate activities and investments can be negatively impacted by unfavorable
interest rates, over-building, a slow down in home sales and construction, and
a surplus of available real estate and related projects. Real estate is also
subject to significant variability and fluctuations in real estate values. To
the extent that the Company engages in real estate activities, adverse changes
in real estate values or in the economy generally could have a material adverse
impact on the Company's results of operations in addition to any impact such
changes may have in connection with its lending activities.
POTENTIAL IMPACT OF CHANGES IN INTEREST RATES
BankAtlantic's profitability is dependent to a large extent on its net
interest income, which is the difference between its interest income on
interest-earning assets and its interest expense on interest-bearing
liabilities. BankAtlantic, like most financial institutions, is affected by
changes in general interest rate levels, which are currently at relatively low
levels, and by other economic factors beyond its control. Interest rate risk
arises from mismatches (I.E., the interest sensitivity gap) between the dollar
amount of repricing or maturing assets and liabilities, and is measured in
terms of the ratio of the interest rate sensitivity gap to total assets. More
assets repricing or maturing than liabilities over a given time frame is
considered asset-sensitive and is reflected as a positive gap, and more
liabilities repricing or maturing than assets over a given time frame is
considered liability-sensitive and is reflected as a negative gap. An
asset-sensitive position (I.E., a positive gap) will generally enhance earnings
in a rising interest rate environment and will negatively impact earnings in a
falling interest rate environment, while a liability-sensitive position (I.E.,
a negative gap) will generally enhance earnings in a falling interest rate
environment and negatively impact earnings in a rising interest rate
environment. Fluctuations in interest rates are not predictable or
controllable. BankAtlantic has attempted to structure its asset and liability
management strategies to mitigate the impact on net interest income of changes
in market interest rates. At June 30, 1997, BankAtlantic had a one year
cumulative negative gap of 2.80%. This negative one year gap position may, as
noted above, have a negative impact on earnings in a rising interest rate
environment.
REGULATORY OVERSIGHT
BankAtlantic is subject to extensive regulation, supervision and
examination by the OTS as its chartering authority and primary federal
regulator, and by the FDIC, which insures its deposits up to applicable limits.
BankAtlantic is a member of the FHLB of Atlanta and is subject to certain
limited regulation by the Federal Reserve Board. As the holding company of
BankAtlantic, the Company is also subject to regulation and oversight by the
OTS. Such regulation and supervision governs the activities in which an
institution may engage and is intended primarily for the protection of the FDIC
insurance funds and depositors. Regulatory authorities have been granted
extensive discretion in connection with their supervisory and enforcement
activities and regulations have been implemented which have increased capital
requirements, increased insurance premiums and have resulted in increased
administrative, professional and compensation expenses. Any change in the
regulatory structure or the applicable statutes or regulations could have a
material impact on the Company and BankAtlantic and their operations.
Additional legislation and regulations may be enacted or adopted in the future
which could significantly affect the powers, authority and operations of
BankAtlantic and BankAtlantic competitors which in turn could have a material
adverse affect on BankAtlantic and its operations.
16
<PAGE>
COMPETITION
The Company competes with various types of financial institutions,
including other savings institutions, commercial banks, finance companies,
mortgage banking companies, money market funds and credit unions, many of which
have substantially greater financial resources than the Company and, in some
cases, operate under fewer regulatory constraints. The Company not only
competes with financial institutions headquartered in the State of Florida but
also competes with a number of financial institutions headquartered outside of
Florida who are active in the state.
USE OF PROCEEDS
The net proceeds to the Company are estimated to be approximately $
million ($ million if the Underwriter's over-allotment option is exercised
in full) from the sale of the Class A Common Stock and $ million ($
million if the Underwriter's over-allotment is exercised in full) from the sale
of the Debentures (an aggregate of $ ), in each case after deduction of the
underwriting discount and estimated expenses. The net proceeds from the sale of
the Class A Common Stock and the Debentures will be contributed by the Company
as capital to BankAtlantic where it will be used to support BankAtlantic's
growth, both internal and via acquisitions, including those expected to result
from the continuing consolidation of the Florida banking market. The offering
of the shares of Class A Common Stock and the offering of the Debentures
contemplated hereby, while being conducted concurrently, are not contingent
upon the other being consummated. Accordingly, there is no assurance that both
of these offerings will be consummated and, in the event that only one of such
offerings is consummated, aggregate net proceeds to the Company would be
significantly reduced.
17
<PAGE>
PRICE RANGE FOR COMMON STOCK AND DIVIDENDS
The Class A Common Stock commenced trading on the New York Stock Exchange
under the symbol "BBX" on August 20, 1997. Prior to that time, the Class A
Common Stock was listed on the Nasdaq National Market under the symbol "BANCA".
The Company's Class B Common Stock is listed on the Nasdaq National Market
under the symbol "BANC". On October 23, 1997 there were approximately 722
record holders of the Class A Common Stock and 11,597,914 shares issued and
outstanding and 577 record holders of the Class B Common Stock and 10,677,778
shares issues and outstanding.
The following table sets forth, for the periods indicated, the high and
low closing sale prices of the Class A Common Stock and the Class B Common
Stock as reported by the Nasdaq National Market (or with respect to the Class A
Common Stock for the period after August 20, 1997, as reported by the New York
Stock Exchange), as adjusted to reflect the 25% stock dividends issued to the
Company's common shareholders on July 19, 1995, February 1, 1996, July 31,
1996, March 4, 1997 and August 19, 1997.
<TABLE>
<CAPTION>
CLASS B COMMON STOCK PRICE CLASS A COMMON STOCK PRICE
----------------------------------- ----------------------------------
DIVIDENDS DIVIDENDS
HIGH LOW PER SHARE HIGH LOW PER SHARE
--------- --------- ----------- --------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Fiscal year ending December 31, 1997 ......... 161/8 85/16 -- 16 81/4 --
First Quarter ................................. 1015/16 85/16 0.0233 109/16 81/4 0.0259
Second Quarter .............................. 119/16 911/16 0.0233 113/16 93/16 0.0259
Third Quarter ................................. 16 115/16 0.0300 16 115/16 0.0330
Fourth Quarter through October 13, 1997 ...... 161/8 151/8 -- 155/8 1411/16 --
Fiscal year ended December 31, 1996 ............ 83/4 61/2 -- 83/4 63/4 --
First Quarter ................................. 77/8 61/2 0.0225 715/16 711/16 0.0259
Second Quarter .............................. 83/16 61/2 0.0225 715/16 71/6 0.0259
Third Quarter ................................. 83/4 69/16 0.0233 81/2 63/4 0.0259
Fourth Quarter .............................. 83/4 8 0.0233 83/4 81/8 0.0259
Fiscal year ended December 31, 1995 ............ 83/16 43/4 -- -- -- --
First Quarter ................................. 53/8 415/16 0.0201 -- -- --
Second Quarter .............................. 6 43/4 0.0201 -- -- --
Third Quarter ................................. 8 53/4 0.0225 -- -- --
Fourth Quarter .............................. 83/16 75/16 0.0225 -- -- --
</TABLE>
On October 23, 1997, the last sale price of the Class A Common Stock as
reported by the New York Stock Exchange was $1411/16 per share and the last
price of the Class B Common Stock as reported by the Nasdaq National Market was
$149/16 per share.
The Company has paid regular quarterly cash dividends on the Class B
Common Stock since its formation in 1994 and paid regular quarterly cash
dividends on the Class A Common Stock since its initial issuance in March 1996.
Prior to 1994, BankAtlantic had paid regular quarterly cash dividends on its
common stock since August 1993.
The Company intends to continue to declare regular quarterly cash
dividends on the Class A Common Stock and the Class B Common Stock. The Class A
Common Stock is entitled to receive cash dividends equal to at least 110% of
any cash dividends declared and paid on the Class B Common Stock. The
declaration and payment of dividends will depend upon, among other things, the
results of operations, financial condition and cash requirements of the Company
and on the ability of BankAtlantic to pay dividends or otherwise advance funds
to the Company, which in turn is subject to OTS regulations and is based upon
BankAtlantic's regulatory capital levels and net income.
18
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated historical capitalization,
including deposits, of the Company at June 30, 1997 and as adjusted to reflect
(i) the sale of the Class A Common Stock offered hereby and the estimated net
proceeds therefrom, (ii) the sale of the Debentures offered hereby and the
estimated net proceeds therefrom and (iii) the sale of both the Class A Common
Stock and the Debentures offered hereby and the aggregate estimated net
proceeds therefrom.
<TABLE>
<CAPTION>
JUNE 30, 1997
--------------------------------------------------------------------
ACTUAL AS ADJUSTED(1) AS ADJUSTED(2) AS ADJUSTED(3)
------------ ---------------- ---------------- ---------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
DEPOSITS AND BORROWINGS:
Deposits .............................. $1,768,087 $1,768,087 $1,768,078 $1,768,087
Advances from FHLB .................. 467,704
Securities sold under agreements
to repurchase ..................... 105,544
Subordinated debentures ............... 78,300 78,300 178,300 178,300
GUARANTEED PREFERRED BENEFICIAL INTERESTS
IN COMPANY'S JUNIOR SUBORDINATED
DEBENTURES(4) ........................ 74,750 74,750 74,750 74,750
STOCKHOLDERS' EQUITY:
Preferred Stock, $0.01 par value,
10,000,000 shares authorized, none
issued and outstanding ............... 0 0 0 0
Class A Common Stock, 30,000,000
shares authorized, 11,765,117,
15,265,117, 11,765,117 and 15,265,117
shares issued and outstanding,
respectively(5) ..................... 118 153 118 153
Class B Common Stock, 15,000,000 shares
authorized, 10,707,671 shares issued
and outstanding(5) .................. 107 107 107 107
Additional paid in capital ............ 57,747 57,747
Retained earnings ..................... 94,606 94,606 94,606 94,606
Net unrealized appreciation on debt
securities available for sale--net of
deferred income taxes ............... 997 997 997 997
----------- ----------- ----------- -----------
TOTAL STOCKHOLDERS' EQUITY ......... $ 153,575 $ $ $
=========== =========== =========== ===========
</TABLE>
- ----------------
(1) As adjusted for the estimated net proceeds from the sale of 3,000,000
shares of Class A Common Stock being offered hereby and assumes that the
Underwriters' overallotment option is not exercised.
(2) As adjusted for the estimated net proceeds from the sale of $100 million in
principal amount of the Debentures offered hereby and assumes that the
Underwriters' overallotment option is not exercised.
(3) As adjusted for the estimated aggregate net proceeds from the sale of both
the Class A Common Stock and the Debentures offered hereby.
(4) Preferred Securities representing beneficial interests in an aggregate
amount of $74,750,000 of the 91/2% Junior Subordinated Debentures of the
Company. The Junior Subordinated Debentures will mature on June 30, 2027.
(5) Does not include 1,290,736 shares of Class A Common Stock issuable upon the
exercise of stock options outstanding at June 30, 1997, of which 86,927
are currently exercisable, 6,996,337 shares of Class A Common Stock
issuable upon conversion of the $57.3 million in outstanding principal
amount of the 63/4% Convertible Debentures or 1,727,161 shares of Class B
Common Stock issuable upon exercise of stock options outstanding at June
30, 1997, of which 413,769 are currently exercisable.
19
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's historical and as adjusted
ratio of earnings to fixed charges for the six months ended June 30, 1997 and
for the year ended December 31, 1996. The as adjusted ratio of earnings to
fixed charges is presented as if the consummation of the offering of the
Debentures had occurred on January 1, 1996 or January 1, 1997. Earnings used in
computing the ratios shown consist of earnings from continuing operations
before taxes, interest expense and non-cumulative preferred stock dividends.
Fixed charges represent all interest expense (ratios are presented both
excluding and including interest on deposits) and the portion of rental expense
considered to be representative of interest. Interest expense (other than on
deposits) includes interest on long-term obligations, FHLB borrowings,
securities sold under agreements to repurchase and other funds borrowed. For
each 1/2 of 1% change in the interest rate on the Debentures being offered
hereby, interest expense would change by $500,000 on an annualized basis and as
adjusted ratio of earnings to fixed charges would change by a maximum of .04.
<TABLE>
<CAPTION>
FOR THE SIX MONTHS FOR THE YEAR
ENDED JUNE 30, 1997 ENDED DECEMBER 31, 1996
---------------------------- ---------------------------
HISTORICAL AS ADJUSTED HISTORICAL AS ADJUSTED
------------ ------------- ------------ ------------
<S> <C> <C> <C> <C>
Excluding interest on deposits ...... 2.02 2.34
Including interest on deposits ...... 1.39 1.40
</TABLE>
20
<PAGE>
DESCRIPTION OF THE DEBENTURES
The Debentures are a series of debt securities issued under an Indenture,
dated as of , 1997 (the "Indenture"), between the Company and First
Trust National Association, as trustee (the "Trustee"). The Debentures are not
savings accounts or deposits and are not insured by the FDIC or any other
governmental agency. The terms and provisions of the Debentures include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (the "Trust Indenture Act") as in effect on the
date of the Indenture. The Debentures are subject to all such terms, and
holders of the Debentures are referred to the Indenture and the Trust Indenture
Act for a statement thereof. The following summary of certain provisions of the
Indenture does not purport to be complete and is qualified in its entirety by
reference to the Indenture, including the definitions therein of certain terms
used below. A copy of the Indenture is filed as an exhibit to the Registration
Statement, of which this Prospectus is a part. For purposes of this section,
the term "Company" means only BankAtlantic Bancorp, Inc. and not its
subsidiaries.
GENERAL
The Debentures will be general unsecured obligations of the Company
limited to $100 million in aggregate principal amount, assuming no exercise of
the Underwriters' over-allotment option. The Debentures will not be secured by
the assets of the Company or otherwise and will not have the benefit of a
sinking fund for the retirement of principal. The Debentures will rank on par
with all subordinated indebtedness of the Company, including the Company's
currently outstanding $21 million principal amount of 9% Debentures and $57.3
million principal amount of 63/4% Convertible Debentures, and will be
subordinated in right of payment to all Senior Indebtedness (as defined below)
of the Company, which may include obligations of the Company to BankAtlantic.
The Debentures will be senior to the Company's currently outstanding 91/2%
Junior Subordinated Debentures. The Company, or any subsidiary of the Company
including BankAtlantic, may incur additional indebtedness constituting Senior
Indebtedness or Indebtedness (as defined below) that ranks on par with the
Debentures. The Indenture does not limit the total indebtedness that either the
Company or any of its subsidiaries may incur. The Debentures will be
subordinate to all indebtedness of the Company that does not state that it is
subordinate to or on par with the Debentures. The right of the Company to
participate in any distribution of assets of any subsidiary, upon its
liquidation or reorganization or otherwise (and thus the ability of Holders of
the Debentures to benefit indirectly from such distribution) is subject to the
prior claims of creditors of that subsidiary.
The Debentures will mature on , 2007, unless redeemed earlier at
the option of the Company. See "--Redemption or Repurchase of Debentures." The
Debentures will bear interest at the rate per annum shown on the cover page of
this Prospectus from the date of delivery or from the most recent Interest
Payment Date (as defined in the Indenture) to which interest has been paid or
provided for, payable semi-annually on and of each year,
commencing , 1998, to the person in whose name the Debenture (or any
predecessor Debenture) is registered at the close of business on the preceding
or , as the case may be. Interest on the Debentures will be
computed on the basis of a 360-day year of twelve 30-day months. The Trustee
will serve as Debenture Registrar and Paying Agent for the Debentures.
Principal and interest shall be payable by check mailed by the Trustee to the
person entitled to payment on the interest payment date.
The Debentures will be denominated in U.S. dollars and payments of
principal of and interest on the Debentures will be in U.S. dollars. The
Debentures may be presented for registration of transfer or exchange and shall
be duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the holder thereof or his
attorney duly authorized in writing. The registered holder of a Debenture will
be treated as its owner for all purposes. Money for the payment of principal or
interest upon redemption remaining unclaimed for two years will be paid back to
the Company at its request.
21
<PAGE>
The Company's primary source of funds for the payment of principal and
interest on the Debentures is dividends from BankAtlantic. From time to time
while the Debentures are outstanding BankAtlantic may be subject to regulatory
or contractual constraints that restrict its ability to pay dividends to the
Company. See "Risk Factors--Sources of Payments to Holders of Debentures;
Ability to Pay Dividends; Possible Issuance of Additional Securities."
REDEMPTION OR REPURCHASE OF DEBENTURES
The Debentures are redeemable at the option of the Company, in whole or in
part, at any time after , 2000, on not less than 30 days notice, but
not more than 60 days prior to the redemption date at the following redemption
prices (expressed as percentages of principal amount), plus accrued interest to
the redemption date, if redeemed during the twelve month period beginning
1 of the years indicated below:
<TABLE>
<S> <C>
2000 ...... 104%
2001 ...... 103
2002 ...... 102
2003 ...... 101
2004 ...... and thereafter 100
</TABLE>
The Company may at any time repurchase the Debentures at any price in the
open market or otherwise. Debentures so purchased by the Company may be held or
resold or, at the discretion of the Company, may be surrendered to the Trustee
for cancellation.
BOOK-ENTRY, DELIVERY AND FORM
The Debentures to be sold as set forth herein will initially be issued in
the form of a fully registered Global Certificate (the "Global Certificate").
The Global Certificate will be deposited on the date of the closing of the sale
of the Debentures offered hereby with, or on behalf of, The Depository Trust
Company, New York, New York (the "Depositary") and registered in the name of
Cede & Co., as nominee of the Depositary (such nominee being referred to herein
as the "Global Certificate Holder").
Except as set forth below, the Global Certificate may be transferred, in
whole and not in part, only to another nominee of the Depositary or to a
successor of the Depositary or its nominee.
The Depositary has advised the Company and the Underwriters as follows: it
is a limited-purpose trust company which was created to hold securities for its
participating organizations (the "Participants") and to facilitate the
clearance and settlement of transactions in such securities between
Participants through electronic book-entry changes in accounts of its
Participants. Participants include securities brokers and dealers (including
the Underwriters), banks, trust companies, clearing corporations and certain
other organizations. Access to the Depositary's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a Participant, either
directly or indirectly ("indirect participants"). Persons who are not
Participants may beneficially own securities held by the Depositary only
through Participants or indirect participants.
The Depositary has also advised that pursuant to procedures established by
it (i) upon the issuance by the Company of the Debentures, the Depositary will
credit the accounts of Participants designated by the Underwriters with the
principal amount of the Debentures purchased by the Underwriters, and (ii)
ownership of beneficial interests in the Global Certificate 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), the
Participants and the indirect participants. The laws of some states require
that certain persons take physical delivery in definitive form of securities
which they own. Consequently, the ability to transfer beneficial interests in
the Global Certificate is limited to such extent.
All payments on the Global Certificate registered in the name of the
Depositary's nominee will be made by the Company through the Paying Agent to
the Depositary's nominee as the registered owner
22
<PAGE>
of the Global Certificate. Under the terms of the Indenture, the Company and
the Trustee will treat the persons in whose name the Debentures are registered
as the owners of such Debentures for the purpose of receiving payments of
principal and interest on such Debentures and for all other purposes
whatsoever. Therefore, neither the Company, the Trustee nor the Paying Agent
has any direct responsibility or liability for the payment of principal or
interest on the Debentures to owners of beneficial interests in the Global
Certificate. The Depositary has advised the Company and the Trustee that its
present practice is, upon receipt of any payment of principal or interest, to
credit immediately the accounts of the Participants with payment in amounts
proportionate to their respective holdings in principal amount of beneficial
interests in the Global Certificate as shown on the records of the Depositary.
Payments by Participants and indirect participants to owners of beneficial
interests in the Global Certificate will be governed by standing instructions
and customary practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in "street name" and will be
the responsibility of such Participants or indirect participants.
So long as the Global Certificate Holder is the registered owner of the
Global Certificate, the Global Certificate Holder will be considered the sole
holder under the Indenture of any Debentures evidenced by the Global
Certificate. Beneficial owners of Debentures evidenced by the Global
Certificate will not be considered the owners or holders thereof under the
Indenture for any purpose, including with respect to the giving of any
directions, instructions or approvals to the Trustee thereunder. Neither the
Company nor the Trustee will have any responsibility or liability for any
aspect of the records of the Depositary or for maintaining, supervising or
reviewing any records of the Depositary relating to the Debentures.
The Company will issue Debentures in definitive form in exchange for the
Global Certificate if, and only if, either (i) the Depositary is at any time
unwilling or unable to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, (ii) an Event of Default has occurred
and is continuing and the Debentures registrar has received a request from the
Depositary to issue Debentures in definitive form in lieu of all or a portion
of the Global Certificate (in which case the Company shall deliver Debentures
in definitive form within 30 days of such request), or (iii) the Company
determines not to have the Debentures represented by a Global Certificate. In
any instance, an owner of a beneficial interest in the Global Certificate will
be entitled to have Debentures equal in principal amount to such beneficial
interest registered in its name and will be entitled to physical delivery of
such Debentures in definitive form. The Debentures so issued in definitive form
will be issued in denominations of $1,000 and integral multiples thereof and
will be issued in registered form only without coupons.
CONVERTIBILITY
The holder of any Debenture will have the right, at its option, to convert
the principal amount thereof (or any portion thereof in whole multiples of
$1,000) into shares of the Company's Class A Common Stock at a conversion price
of $ per share (subject to adjustment as described below) at any time
prior to maturity, unless previously redeemed, or in case a Debenture has been
called for redemption, then with respect to such called Debenture, until and
including the close of business on the third business day preceding the
redemption date. Upon conversion, no payment of accrued interest will be made
(unless the Debentures surrendered for conversion has been called for
redemption), but if any holder surrenders a Debenture for conversion between
the record date for the payment of an installment of interest and the next
Interest Payment Date, such holder will forfeit his right to such interest
payment and therefore such Debenture (unless called for redemption), when
surrendered for conversion, must be accompanied by payment of an amount equal
to the interest thereon which the holder on such record date is entitled to
receive on the next interest payment date. No fractional shares will be issued
upon conversion, but in lieu thereof, an appropriate amount based upon market
prices will be paid in cash by the Company. In the case of Global Certificates,
conversion will be effected by DTC upon notice from the holder of a beneficial
interest in a Global Certificate in accordance with its rules and procedures.
The Company will take all reasonable steps necessary to
23
<PAGE>
comply with federal and state securities laws in connection with the issuance
of shares of Class A Common Stock upon conversion of the Debentures so that
upon conversion such shares will not bear any legend restricting transfer.
ANTI-DILUTION PROVISIONS
The conversion price of the Debentures is subject to adjustment upon the
occurrence of certain events, including (i) the payment of a dividend in shares
of Class A Common Stock to holders of Class A Common Stock or a dividend to
holders of Class A Common Stock payable in shares of the Company's capital
stock other than Class A Common Stock; (ii) the subdivision, combination or
reclassification of outstanding shares of Class A Common Stock; (iii) the
distribution to all holders of Class A Common Stock of evidences of
indebtedness or assets (excluding cash dividends or cash distributions payable
out of retained earnings or stock dividends) or subscription rights or warrants
to subscribe for same; or (iv) the issuance of rights or warrants (other than
those referred to above) entitling anyone to subscribe for or purchase shares
of Class A Common Stock or securities or instruments convertible into shares of
Class A Common Stock in each cash at less than current market price (as defined
in the Indenture) for such Class A Common Stock. Any non-cash dividend or
distribution per share of Class B Common Stock must be identical to the
distribution per share of Class A Common Stock, except that a stock dividend or
other distribution to holders of Class A Common Stock may be declared and
issued in Class A Common Stock while a stock dividend or other distribution to
holders of Class B Common Stock may be declared and issued in either Class A
Common Stock or Class B Common Stock so long as the number of any shares so
issued is, on a per share basis, the same. See "Description of Capital
Stock--Dividends". The Company will not be required to make any adjustments in
the conversion price of less than one percent of the conversion price, but the
same will be carried forward and taken into account in the computation of any
subsequent adjustment.
In case of any reclassification or change of outstanding Class A Common
Stock (with certain exceptions) or in case of any consolidation or merger of
the Company with or into another person (with certain exceptions) or in case of
any transfer or conveyance of the property of the Company substantially as an
entirety, then the surviving entity will be required to execute and deliver a
supplemental indenture providing that the Holder of each Debenture then
outstanding would have the right thereafter to convert such Debenture into the
kind and amount of securities or property receivable upon the reclassification,
change, consolidation, merger, transfer or conveyance by a holder of the number
of shares of Class A Common Stock into which such Debenture could have been
converted immediately prior thereto.
SUBORDINATION
The principal and premium, if any, and interest on the Debentures will be
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness of the Company. As of June 30, 1997, the Company had no
Senior Indebtedness outstanding. The Debentures will rank on a par with all
subordinated indebtedness of the Company, including the Company's currently
outstanding $21 million principal amount of 9% Debentures and $57.3 million
principal amount of 63/4% Convertible Debentures. The Indenture does not limit
the amount of Senior Indebtedness or other indebtedness, secured or unsecured,
that the Company or any of its subsidiaries may incur. If payments on any
Senior Indebtedness have been accelerated, the Company shall be prohibited from
making any payment of principal, premium, if any, or interest on the Debentures
until payments of the Senior Indebtedness are made or provided for. Upon any
distribution of assets of the Company in connection with any dissolution,
winding up, liquidation or reorganization of the Company, payment of principal,
premium, if any, or interest on the Debentures will be subordinated, to the
extent and in the manner set forth in the Indenture, to the prior payment in
full of Senior Indebtedness. By reason of such subordination, in the event of a
distribution of assets in any such proceeding, certain general creditors of the
Company may recover more, ratably, than holders of the Debentures.
24
<PAGE>
"Senior Indebtedness" means any and all Indebtedness of the Company,
except any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that such
Indebtedness shall be subordinate or shall rank pari passu in right of payment
to the Debentures.
COVENANTS
The Indenture contains certain customary covenants found in Indentures
under the Trust Indenture Act, including covenants with respect to the payment
of principal and interest, maintenance of an office or agency for administering
the Debentures, holding of funds for payments on the Debentures in trust,
payment by the Company of taxes and other claims, maintenance by the Company of
its properties and its corporate existence and delivery of annual
certifications to the Trustee.
RESTRICTIONS ON DIVIDENDS AND OTHER DISTRIBUTIONS
The Indenture provides that the Company cannot declare or pay dividends
on, or purchase, redeem or acquire for value its capital stock, return any
capital to holders of capital stock as such, or make any distribution of assets
to holders of capital stock as such, unless, at the time of any such dividend
declaration or the date of any such purchase, redemption, payment or
distribution specified above, the Company is not in default in the payment of
interest on the Debentures or an Event of Default has not occurred.
The Indenture does not prohibit or restrict the Company from selling
additional shares of capital stock or other debt securities nor from pledging
BankAtlantic's capital stock. Further, BankAtlantic is not restricted from
issuing any shares of capital stock of BankAtlantic or debt securities of
BankAtlantic.
DEFAULTS AND REMEDIES
An "Event of Default," as defined in the Indenture, includes (i) the
failure by the Company to pay principal of or premium, if any, on the
Debentures at maturity or upon redemption (whether or not such payment is
prohibited by the subordination provisions), (ii) the failure by the Company to
pay interest on any of the Debentures on any Interest Payment Date and such
failure continues for a period of 30 days or more(whether or not such payment
is prohibited by the subordination provisions), (iii) the failure by the
Company to comply with any of its other agreements or covenants in, or
provisions of, the Indenture and such default continues for the period and
after the notice specified below and (iv) certain events of bankruptcy,
insolvency or reorganization of the Company.
A Default under clause (iii) above is not an Event of Default until the
Trustee notifies the Company in writing, or the Holders of at least 25% in
principal amount of the Debentures then outstanding notify the Company and the
Trustee in writing, of the Default, and the Company does not cure the Default
within 60 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default". Such notice shall be given by the Trustee if so requested in writing
by the Holders of at least 25% in principal amount of the Debentures then
outstanding. Any notice required to be delivered by the Trustee to the Company
shall be given promptly after the Trustee becomes aware of such Default or is
requested by such Holders to deliver such notice.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default known to it, mail to the Holders notice of such
Default, provided that, except in the case of Default in the payment of
principal of or interest on any of the Debentures, the Trustee shall be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of the Holders.
The Indenture only permits acceleration of payment of principal of the
Debentures upon an Event of Default resulting from the failure of the Company
to pay principal or interest on the Debentures or
25
<PAGE>
upon certain events of bankruptcy, insolvency or reorganization. If an Event of
Default resulting from the failure of the Company to pay principal or interest
on the Debentures or upon certain events of bankruptcy, insolvency or
reorganization shall have occurred and be continuing, the Trustee or the
Holders of not less than 30% in aggregate principal amount of the Debentures
then outstanding, by notice in writing to the Company (and to the Trustee if
given by the Holders), may declare to be immediately due and payable all unpaid
principal of all the Debentures. An acceleration and its consequences may be
rescinded and past defaults waived by Holders of a majority in principal amount
of the Debentures then outstanding upon conditions provided in the Indenture.
No Holder may pursue any remedy under the Indenture unless such Holder has
previously given to the Trustee written notice of a continuing Event of Default
and unless the Holders of at least 30% in principal amount of the Debentures
then outstanding have requested the Trustee in writing to pursue the remedy and
offered the Trustee indemnity satisfactory to the Trustee against loss,
liability and expense to be thereby incurred and the Trustee has failed so to
act within 60 days after receipt of the same.
The Indenture requires the Company to file periodic reports with the
Trustee as to the absence of defaults.
SATISFACTION, DISCHARGE AND DEFEASANCE
The Indenture provides that the Company will at its option either (a) be
deemed to have paid and discharged the entire indebtedness represented by and
its obligations under the Debentures (except for the obligation to pay the
principal of, premium, if any, and interest on, the Debentures and certain
obligations to register the transfer or exchange of the Debentures, to replace
temporary or mutilated, destroyed, lost or stolen Debentures, to maintain an
office or agency in respect to the Debentures and to hold moneys for payment in
trust) ("legal defeasance") or (b) cease to be under any obligation to comply
with certain terms, provisions or conditions of the Indenture (those terms,
provisions or conditions described in the Indenture under "Consolidation,
Merger or Sale") or the terms, provisions or conditions of the Debentures
("covenant defeasance") in either case, on the 91st day after (i) the Company
has paid or caused to be paid all other sums payable with respect to the
outstanding Debentures and the Company has delivered to the Trustee a
certificate from an authorized officer and an opinion of legal counsel, each
stating that all conditions precedent relating to the satisfaction and
discharge of the entire indebtedness on all of the outstanding Debentures have
been complied with; (ii) the Company has deposited or caused to be deposited
irrevocably with the Trustee as a trust fund specifically pledged as security
for the benefit of the holders of the Debentures, (x) dollars in an amount or
(y) U.S. Government Obligations (as defined in the Indenture) (which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than the due date of any payment of
principal, premium, if any, and interest on the outstanding Debentures) in an
amount or (z) a combination of (x) and (y), sufficient to pay and discharge
each installment of principal of and interest or premium, if any, on the
outstanding Debentures on the dates such installments of interest or principal
or premium, if any, are due; and (iii) no Event of Default has occurred and is
continuing on the date of such deposit. Among the conditions of the Company's
exercising any such option, the Company is required to deliver to the Trustee
an opinion of independent counsel of recognized standing to the effect that the
deposit and related defeasance would not cause the Holders of the Debentures to
recognize income, gain or loss for United States Federal income tax purposes
and that the Holders will be subject to United States Federal income tax in the
same amounts, in the same manner and at the same times as would have been the
case if such deposit and related defeasance had not occurred.
CONSOLIDATION, MERGER OR SALE OF ASSETS
The Indenture provides that the Company will not merge or consolidate with
or sell all or substantially all of its assets to, any entity unless it is the
surviving or successor entity in such transaction and, immediately thereafter,
is not in default under the Indenture or, if it is not the surviving or
successor entity, the successor entity expressly assumes the Company's
obligations under the Indenture and, immediately after such transaction, the
successor entity is not in default under the Indenture. Any
26
<PAGE>
successor entity shall assume by supplemental indenture all of the obligations
of the Company under the Debentures and the Indenture and the entity formed by
such consolidation or into which the Company is merged shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture, and thereafter the predecessor entity shall be relieved of all
obligations and covenants under the Indenture and the Debentures issued
thereunder and may thereafter be liquidated and dissolved.
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may, without the
consent of any holders of Debentures, enter into supplemental indentures for
purposes, among other things, of: (a) evidencing the succession of another
entity to the Company and the assumption by any such successor of the covenants
of the Company; (b) making any change that does not adversely affect the rights
of any Holders; or (c) curing any ambiguity, defect or inconsistency; provided,
however, that such action shall not adversely affect the interest of the
Holders in any material respect.
Most of the terms of the Indenture and the Debentures may be modified with
the consent of the Holders of not less than two-thirds of the principal amount
of Debentures then outstanding. However, each Holder must agree to: (i) an
extension of maturity, (ii) a reduction in principal amount or the rate of
interest on the Debentures, (iii) an increase in the conversion price of the
Debentures, (iv) a reduction in the premium, if any, payable upon redemption or
(v) a reduction in the aforesaid percentage required for modification.
The Company may omit in any particular instance to comply with any
covenant or condition as set forth in the Indenture if before the time for such
compliance two-thirds of the Holders of the principal amount of Debentures then
outstanding shall either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver may extend
to or affect such covenant or condition except to the extent so expressly
waived, and until such waiver has become effective, the obligation of the
Company and the duties of the Trustee in respect of any such covenant will
remain in full force and effect. No supplemental indenture will affect the
seniority rights of the holders of Senior Indebtedness without the consent of
such holders.
REGARDING THE TRUSTEE
The Company and its subsidiaries may maintain deposit accounts and conduct
other banking transactions with the Trustee in the ordinary course of their
businesses.
27
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following summary description of the Company's capital stock does not
purport to be complete and is subject to the more detailed provisions of the
Company's Articles of Incorporation and Bylaws and is qualified in its entirety
by reference thereto.
The authorized capital stock of the Company consists of 30,000,000 shares
of Class A Common Stock, par value $.01 per share, 15,000,000 shares of Class B
Common Stock, par value $.01 per share, and 10,000,000 shares of preferred
stock, par value $.01 per share (the "Preferred Stock"). As of October 23,
1997, the Company had 11,597,914 shares of Class A Common Stock and 10,677,778
shares of Class B Common Stock issued and outstanding and no shares of
Preferred Stock were outstanding.
The Class A Common Stock and the Class B Common Stock have substantially
identical terms except that (i) the Class B Common Stock is entitled to one
vote per share while the Class A Common Stock has no voting rights other than
those which may be required by Florida law in certain limited circumstances and
(ii) the Class A Common Stock is entitled to receive cash dividends equal to at
least 110% of any cash dividends declared and paid on the Class B Common Stock.
VOTING
The holders of Class B Common Stock currently possess exclusive voting
rights in the Company. Shares of Preferred Stock issued in the future may be
granted voting rights at the discretion of the Board of Directors. On matters
submitted to the shareholders of the Company, the holders of the Class B Common
Stock will be entitled to one vote for each share held, while holders of Class
A Common Stock will not be entitled to vote except as may be required by
Florida law. Under the Florida Business Corporation Act (the "FBCA"), holders
of Class A Common Stock would currently be entitled to vote as a separate
voting group on certain amendments to the Company's Articles of Incorporation
including, without limitation, amendments which (i) increase or decrease the
authorized number of shares of Class A Common Stock, (ii) change the
designation, rights, preferences or limitations of the Class A Common Stock,
(iii) create a new class of shares, or increase the rights, preferences or
number of authorized shares, which would have rights or preferences with
respect to distributions or dissolution that are prior, superior or
substantially equal to the Class A Common Stock, or (iv) effect an exchange or
reclassification of shares of another class of stock into shares of Class A
Common Stock or of Class A Common Stock into shares of another class. In
addition, under the FBCA holders of Class A Common Stock would currently be
entitled to vote as a separate voting group on any plan of merger or plan of
share exchange which contains a provision which, if included in a proposed
amendment to the Articles of Incorporation, would require their vote as a
separate voting group. No shares have cumulative voting rights.
DIVIDENDS
Holders of shares of Class A Common Stock and Class B Common Stock are
entitled to receive such dividends as may be declared by the Board of Directors
out of funds legally available therefor. The holders of Class A Common Stock
will be entitled to receive cash dividends in an amount equal to at least 110%
of any cash dividends declared and paid on the Class B Common Stock. With
respect to dividends other than cash (including stock splits and stock
dividends), the distribution per share with respect to Class A Common Stock will
be identical to the distribution per share with respect to Class B Common Stock,
except that a stock dividend or other distribution to holders of Class A Common
Stock may be declared and issued in Class A Common Stock while a stock dividend
or other distribution to holders of Class B Common Stock may be declared and
issued in either Class A Common Stock or Class B Common Stock (at the discretion
of the Board) provided that the number of any shares so issued is, on a per
share basis, the same. The ability of the Company to pay cash dividends is
subject to the ability of BankAtlantic to pay dividends or make other
distributions to the Company, which in turn is subject to limitations which are
imposed by law and regulation. See "Risk Factors--Sources of Payments to Holders
of Debentures; Ability to Pay Dividends; Possible Issuance of Additional
Securities."
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<PAGE>
LIQUIDATION RIGHTS
In the event of any liquidation or dissolution of the Company, all assets
of the Company legally available for distribution after payment or provision
for payment of: (i) all debts and liabilities of the Company; (ii) any accrued
dividend claims; (iii) liquidation preferences of any Preferred Stock which may
be outstanding; and (iv) any interests in the Company's liquidation account,
will be distributed ratably, in cash or in kind, among the holders of Class A
Common Stock and Class B Common Stock.
TRANSFER AGENT AND REGISTRAR--ChaseMellon Shareholder Services, LLC.
OTHER CHARACTERISTICS--Neither the Class A Common Stock nor the Class B
Common Stock is entitled to any preemptive right to subscribe for or receive
any shares of any class of stock of the Company (or any securities convertible
into shares of stock of the Company) issued in the future.
PREFERRED STOCK
By amendment to its Articles of Incorporation without shareholder vote,
the Company may provide for one or more classes of Preferred Stock, which must
be separately identified. The shares of any such class may be divided into and
issued in series, with each series separately designated so as to distinguish
the shares thereof from the shares of all other series and classes. The terms
of each series shall be set forth in a supplementary section to the Company's
Articles of Incorporation and may provide for, among other things, board
representation, voting rights and dividend and liquidation preferences. All
shares of the same class must be identical except as to certain relative rights
and preferences specified in the Company's Articles of Incorporation, as to
which there may be variations between different series.
29
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Underwriters named below, through their Representative, Ryan,
Beck & Co., Inc. (the "Representative"), have severally agreed to purchase from
the Company the number of shares of Class A Common Stock and the principal
amount of Debentures set forth opposite their respective names below. The
Underwriters are committed to purchase and pay for all the shares of Class A
Common Stock and all Debentures if any of the shares of Class A Common Stock or
Debentures, respectively, are purchased.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF PRINCIPAL AMOUNT
UNDERWRITER CLASS A COMMON STOCK OF DEBENTURES
- ----------- ---------------------- -----------------
<S> <C> <C>
Ryan, Beck & Co., Inc. ...... $
--------- -------------
TOTAL ..................... 3,000,000 $100,000,000
========= =============
</TABLE>
The Company has been advised by the Representative that the Underwriters
propose initially to offer the Class A Common Stock and the Debentures to the
public at the respective public offering prices set forth on the cover page of
this Prospectus, and to certain dealers at such price less a concession not in
excess of $ per share of Class A Common Stock and % of the principal
amount of the Debentures. The Underwriters may allow and such dealers may
re-allow a concession not in excess of $ per share of Class A Common Stock
and % of the principal amount of the Debentures to certain other dealers.
After the initial public offering, the respective public offering prices and
such concessions may be changed by the Underwriters.
The Company has granted to the Underwriters options, exercisable for 30
days from the date of this Prospectus, to purchase up to 450,000 shares of
Class A Common Stock and $15 million principal amount of additional Debentures
at the respective public offering prices set forth on the cover page hereof
less underwriting discounts. The Underwriters may exercise either such option
to purchase additional shares of Class A Common Stock or Debentures solely for
the purpose of covering over-allotments, if any, incurred in the sale of the
Class A Common Stock or Debentures, respectively.
The Company has agreed to indemnify the Underwriters against and
contribute toward certain liabilities, including liabilities under the
Securities Act.
Until the distribution of the Class A Common Stock and the Debentures is
completed, rules of the Securities and Exchange Commission (the "Commission")
may limit the ability of the Underwriters and certain selling group members to
bid for and purchase shares of Class A Common Stock and Debentures. As an
exception to these rules, the Underwriters are permitted to engage in certain
transactions that stabilize the price of the Class A Common Stock and the
Debentures. Such transactions may consist of bids or purchases for the purpose
of pegging, fixing or maintaining the price of the Class A Common Stock and the
Debentures.
If the Underwriters create a short position in the Class A Common Stock or
the Debentures in connection with the offering (I.E., if they sell more shares
of Class A Common Stock or Debentures than are set forth on the cover page of
this Prospectus), the Underwriters may reduce that short position by purchasing
Class A Common Stock or Debentures, as applicable, in the open market. The
Underwriters also may elect to reduce any short position by exercising all or
part of the over-allotment options described herein.
The Representative also may impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representative purchases
shares of Class A Common Stock or Debentures in the open market to reduce the
Underwriters' short position or to stabilize the price of the Class A Common
Stock or the Debentures, it may reclaim the amount of the selling concession
from the Underwriters and selling group members who sold those securities as
part of the Offering.
In general, purchases of securities for the purpose of stabilization or to
reduce a syndicate short position could cause the price of the security to be
higher than it might otherwise be in the absence of
30
<PAGE>
such purchases. The imposition of a penalty bid might have an effect on the
price of a security to the extent that it were to discourage resales of the
security by purchasers in the offering.
Neither the Company nor any of the Underwriters makes any representation
or prediction as to the direction or magnitude of any effect that the
transactions described above may have on the price of the Class A Common Stock
or the Debentures. In addition, neither the Company nor any of the Underwriters
makes any representation that the Representative will engage in such
transactions or that such transactions, once announced, will not be
discontinued without notice.
Certain of the Underwriters or their affiliates have provided from time to
time and expect to provide in the future, investment banking services to the
Company and its affiliates for which such Underwriter or their affiliates have
received or will receive customary fees and commissions.
LEGAL MATTERS
The validity of the Class A Common Stock and the Debentures offered hereby
will be passed upon for the Company by Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A., Suite 2200, 150 West Flagler Street, Miami, Florida 33130,
counsel to the Company. Certain legal matters have been passed upon for the
Underwriters by Malizia, Spidi, Sloane & Fisch, P.C., One Franklin Square, 1301
K Street, N.W., Suite 700 East, Washington, D.C., counsel to the Underwriters.
EXPERTS
The consolidated financial statements of BankAtlantic Bancorp, Inc. as of
December 31, 1996 and 1995, and for each of the years in the three-year period
ended December 31, 1996, have been incorporated by reference herein and in the
Registration Statement in reliance upon reports of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission are hereby
incorporated in this Prospectus by reference and made a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1996, filed with the Commission on March 21, 1997.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997, filed with the Commission on May 15, 1997.
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997, filed with the Commission on August 14, 1997.
(4) The Company's Current Report on Form 8-K, dated January 6, 1997, filed
with the Commission on January 22, 1997.
(5) The Company's Current Report on Form 8-K, dated February 4, 1997, filed
with the Commission on February 13, 1997.
(6) The Company's Current Report on Form 8-K, dated June 6, 1997, filed
with the Commission on June 12, 1997.
31
<PAGE>
(7) The Company's Current Report on Form 8-K, dated July 22, 1997, filed
with the Commission on July 24, 1997.
(8) The Company's Current Report on Form 8-K, dated August 1, 1997, filed
with the Commission on August 5, 1997.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Class A Common Stock and the Debentures shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing thereof. Any statement contained in a
document incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to
the extent that a statement contained herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference, other than
certain exhibits to such documents. Written requests should be directed to
BankAtlantic Bancorp, Inc., 1750 East Sunrise Boulevard, Fort Lauderdale,
Florida 33304, Attention: Secretary, telephone: 954-760-5000.
32
<PAGE>
---------------------------- ----------------------------
---------------------------- ----------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION AND REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE
UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH
IT RELATES. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH
SUCH OFFER OR SOLICITATION IS UNLAWFUL.
---------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Prospectus Summary .................. 4
The Offering ........................ 6
Risk Factors ........................ 12
Use of Proceeds ..................... 17
Price Range for Common Stock and
Dividends ........................ 18
Capitalization ..................... 19
Description of the Debentures ...... 21
Description of Capital Stock ...... 28
Underwriting ........................ 30
Legal Matters ..................... 31
Experts ........................... 31
Available Information Incorporation of
Certain Documents by Reference ... 31
</TABLE>
[BANKATLANTIC
BANCORP LOGO]
BANKATLANTIC
BANCORP, INC.
3,000,000 SHARES
CLASS A COMMON STOCK
(NON-VOTING)
$100,000,000
% CONVERTIBLE SUBORDINATED
DEBENTURES DUE 2007
-------------
PROSPECTUS
-------------
RYAN, BECK & CO.
, 1997
---------------------------- ----------------------------
---------------------------- ----------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee ..................... $ 50,073
NASD Filing Fee ........................... 17,024
New York Stock Exchange Listing Fee ...... 12,075
NASDAQ SmallCap Market Listing Fee ......... 6,000
Legal Fees and Expenses ..................
Trustee Fees and Expenses ...............
Accounting Fees and Expenses ............
Printing and Mailing Expenses ............
Blue Sky Fees and Expenses ...............
Miscellaneous Expenses .................. ---------
TOTAL FEES AND EXPENSES ............... $
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850 of the Florida Business Corporation Act and the Articles
of Incorporation and Bylaws of the Registrant provide for indemnification of
the Registrant's directors and officers against claims, liabilities, amounts
paid in settlement and expenses in a variety of circumstances, which may
include liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). In addition, the Registrant carries insurance permitted by
the laws of the State of Florida on behalf of Directors, officers, employees or
agents which may cover liabilities under the Securities Act.
ITEM 16. EXHIBITS
The following exhibits either are filed herewith or incorporated by
reference to documents previously filed or will be filed by amendment, as
indicated below:
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
- ---------- -----------
<S> <C>
1 Forms of Underwriting Agreements between the Registrant and the Underwriters.
3.1 Amended and Restated Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 to the Registrant's Registration Statement on Form S-3, filed on
June 5, 1996 (Registration No. 333-05287).
3.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-4, filed on May 5, 1994 (Registration No. 33-77708)).
4.1 Form of Indenture, dated as of , 1997, with respect to the Registrant's
% Convertible Subordinated Debentures due 2007.
4.2 Specimen Convertible Subordinated Debenture (found at Section 2.3 of the Form of
Indenture filed as Exhibit 4.1).
4.3 Specimen certificate for shares of the Registrant's Class A Common Stock, par value $.01
(incorporated by reference to Exhibit 4.4 to Amendment No. 1 to the Registrant's
Registration Statement on Form S-2, filed on March 8, 1996 (Registration No. 333-1212)
5.1 Form of Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. regarding
validity of the Debentures being offered.
5.2 Form of Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. regarding
validity of the shares of Class A Common Stock being offered.
12 Statement regarding computation of earnings to fixed charges.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included with signature pages to this Registration Statement).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION
- ---------- -----------
<S> <C>
25.1 Form T-1: Statement of Eligibility of Trustee
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Lauderdale, State of Florida, on the 24th day of
October, 1997.
BANKATLANTIC BANCORP, INC.
By: /s/ ALAN B. LEVAN
---------------------------------------
Alan B. Levan,
Chairman of the Board of Directors,
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan B. Levan and Frank V. Grieco and each of
them acting alone, his true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments, including
post-effective amendments, to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorneys-in-fact and agents or any
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ALAN B. LEVAN Chairman of the Board, Chief October 24, 1997
- ----------------------------- Executive Officer and President
Alan B. Levan
/s/ JASPER R. EANES Executive Vice President, October 24, 1997
- ----------------------------- Chief Financial Officer
Jasper R. Eanes
/s/ JOHN E. ABDO Vice-Chairman of the Board October 24, 1997
- -----------------------------
John E. Abdo
/s/ FRANK V. GRIECO Senior Executive Vice President October 24, 1997
- ----------------------------- and Director
Frank V. Grieco
/s/ STEVEN M. COLDREN Director October 24, 1997
- -----------------------------
Steven M. Coldren
/s/ Director October 24, 1997
- -----------------------------
Mary E. Ginestra
/s/ BRUNO DIGIULIAN Director October 24, 1997
- -----------------------------
Bruno DiGiulian
/s/ CHARLIE C. WINNINGHAM, II Director October 24, 1997
- -----------------------------
Charlie C. Winningham, II
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION PAGE
- --------- ----------- -------------
<S> <C> <C>
1 Forms of Underwriting Agreements between the Registrant and Ryan, Beck & Co.
4.1 Form of Indenture, dated as of , 1997, with respect to the
Registrant's % Convertible Subordinated Debentures due 2007.
5.1 Form of Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
regarding validity of the Debentures being offered.
5.2 Form of Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
regarding validity of the shares of Class A Common Stock being offered.
12 Statement regarding computation of earnings to fixed charges.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.2 Consent of KPMG Peat Marwick LLP
25.1 Form T-1: Statement of Eligibility of Trustee
</TABLE>
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
3,000,000 Shares
Class A Common Stock
UNDERWRITING AGREEMENT
________ ____, 1997
RYAN, BECK & CO., INC.
As Representative of the several Underwriters
220 South Orange Avenue
Livingston, New Jersey 07039
Dear Sirs:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the underwriters listed in Schedule A hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), 3,000,000 shares of the
Company's Class A common stock $0.01 par value per share. The aforesaid
3,000,000 shares ("Initial Common Securities") and all or any part of the
450,000 shares subject to the option described in Section 2 hereof ("Option
Common Securities") are collectively herein referred to as the "Common
Securities" or the "Securities." The Initial Common Securities are to be sold to
each Underwriter, acting severally and not jointly, in such amounts as are set
forth in Schedule A hereto opposite the name of such Underwriter. The Company
also grants to the Underwriters the option described in Section 2 to purchase
all or any part of an additional 450,000 shares of the Securities to cover
over-allotments. The Company has, outstanding, shares of class A common stock,
$0.01 par value per share ("Class A Common Stock") and shares of class B common
stock, $0.01 par value per share ("Class B Common Stock"). The Debt Securities
are convertible at any time prior to maturity, unless previously redeemed, into
shares of Class A Common Stock.
The initial public offering price for the Securities and the
purchase price to be paid by the Underwriters for the Securities, shall be
agreed upon by the Company and the Representative, acting on behalf of the
several Underwriters, and such agreement shall be set
<PAGE>
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the "Price Determination Agreement"). The Price Determination Agreement
may take the form of an exchange of any standard form of written
telecommunication between the Company and the Representative and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto
(excluding any Form T-1 other than Item 2 to Form T-1) and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it becomes effective and including documents filed after such
effective time under the Securities Exchange Act of 1934, as amended (the "1934
Act") is herein called the "Registration Statement", and the prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, included in the Registration Statement at the time
it becomes effective is herein called the "Prospectus" except that, if any
revised prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Securities differs from the prospectus
included in the Registration Statement at the time it becomes effective (whether
or not such prospectus is required to be filed pursuant to Rule 424(b)), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Securities (the "Offering") as soon as possible after the
Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Securities under a selected dealer
agreement, the form of which is set forth as Exhibit B to this Agreement.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to and agrees with
each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times
2
<PAGE>
subsequent thereto up to the Closing Time referred to below and with
respect to Option Securities, up to the Date of Delivery referred to
below, (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"); (B) neither
the Registration Statement nor any amendment or supplement thereto will
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (C) neither the Prospectus nor
any amendment or supplement thereto will include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that this representation
and warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters expressly for use in the Registration
Statement or the Prospectus, or any information contained in any Form
T-1 (other than Item 2 to such Form T-1) which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Company in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Date of Delivery, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, in each case after excluding any
statement that does not constitute a part of the Registration Statement
or the Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Representative,
will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
3
<PAGE>
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited consolidated financial statements included or incorporated
by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Indenture. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home
Owners' Loan Act as amended; each subsidiary of the Company that
conducts business as a savings association is duly authorized to
conduct such business in each jurisdiction in which such business is
currently conducted, except to the extent that the failure to be so
authorized would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise; and the deposit
accounts of BankAtlantic, A Federal Savings Bank (the "Bank") are
insured by either the Savings Association Insurance Fund or Bank
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC"),
up to the maximum allowable limits thereof. The Company has all such
power, authority, authorization, approvals and orders as may be
required to enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Securities.
(viii) The Bank is a federally chartered savings association
duly organized, validly existing and in good standing under the laws of
the United States with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a
4
<PAGE>
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Bank and its subsidiaries, considered as one enterprise. All of
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company directly or through one
or more subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, except as
disclosed in Note 10 to the consolidated financial statements in the
Prospectus.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the capital stock of the Company and the
Securities conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same. Subsequent to such date, the Company has not issued,
and other than under the Company's existing option plans, savings plan
pursuant to Section 401(k) of the Internal Revenue Code ("401(k)
savings plan"), savings plan or outstanding warrants, is not obligated
to issue, any other shares of capital stock; without limiting the
generality of the foregoing and except for options to purchase
__________ shares of Class A Common Stock granted pursuant to the
Company's 1996 Stock Option Plan (a plan through which options for up
to an additional __________ shares of Class A Common Stock may be
granted) and except for options to purchase __________ shares of Class
B Common Stock granted pursuant to the Company's other option plans
(plans through which options for up to an additional __________ shares
of Class B Common Stock may be granted) there are no options, warrants,
calls, employee benefit or other plans, preemptive rights or
commitments of any character relating to the authorized but unissued
capital stock or any other equity security of the Company or the Bank,
except as disclosed in Note 10 to the consolidated financial statements
in the Prospectus.
(xi) The Common Securities have been duly and validly
authorized and, when issued against full payment of the purchase price
therefore specified in this Agreement, will be validly issued, fully
paid and non-assessable; no holder thereof will be subject to personal
liability solely by reason of being such a holder; the Common
Securities are not subject to the preemptive rights of any stockholder
of the Company.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company.
5
<PAGE>
(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular quarterly dividend paid on Class B Common Stock
and the regular quarterly dividend paid on the Class A Common Stock.
Neither the Company nor the Bank has any material liability of any
nature, contingent or otherwise, except as set forth in the Prospectus.
(xiv) Neither the Company nor the Bank is in violation of any
provision of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this
Agreement by the Company, the issuance and delivery of the Securities,
the consummation by the Company of the transactions contemplated in
this Agreement and the transactions contemplated in the Registration
Statement in connection with the issuance and delivery of the
Securities and compliance by the Company with the terms of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in any
violation of the charter or by-laws of the Company or the Bank, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any subsidiary is a party or by
which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise) earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise) or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of its properties.
6
<PAGE>
(xv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1934 Act, the Trust Indenture Act
of 1939, as amended ("TIA"), and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance,
sale and delivery of the Securities.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement and the Indenture; all
pending legal or governmental proceedings to which the Company or the
Bank is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a
manner adverse to the Company, would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xviii) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and its subsidiaries, considered as one
enterprise; all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and
under which the Company or the Bank holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
the Bank has any notice of any material claim that has been asserted by
anyone adverse to the rights of the Company or the Bank under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
7
<PAGE>
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) Except as disclosed in the Prospectus, no labor problem
exists with the employees of the Company or with employees of the Bank
or to the best knowledge of the Company is imminent that could
materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxi) The Securities will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xxii) There are no persons with registration or other similar
rights to have any securities of the Company registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act; however, the Company has undertaken in connection with the
issuance of its 6 3/4% Convertible Subordinated Debentures to take
reasonable steps to ensure that the shares of common stock issuable
upon exercise thereof may be issued without a legend restricting
transfer.
(xxiii) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxiv) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made
8
<PAGE>
timely payments of all taxes due and payable in respect of such returns
and no material deficiency has been asserted with respect thereto by
any taxing authority.
(xxv) The Company has filed with the New York Stock Exchange
(the "NYSE") all documents and notices required by the NYSE of
companies that have issued securities that are traded on the NYSE.
(xxvi) The Company has filed with The Nasdaq Stock Market
("Nasdaq") all documents and notices required by Nasdaq of companies
that have issued securities that are traded on Nasdaq.
(xxvii) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Representative or to counsel for the
Representative pursuant to this Agreement shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company that amount of Initial Common
Securities set forth in Schedule A of the 3,000,000 Initial Common Securities at
the purchase price and terms set forth in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional 450,000 Common Securities in accordance with the
terms set forth in the Price Determination Agreement. The option hereby granted
will expire at 5:00 p.m. on the 30th day after the date the Registration
Statement is declared effective by the Commission (or at 5:00 p.m. on the next
business day if such 30th day is not a business day) and may be exercised, on
one occasion only, solely for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the time,
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date and place of payment and delivery for the Option Securities. Such time and
date of delivery (the "Date of Delivery") shall be determined by the
Representative but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given. If the option is
exercised as to all or any portion of the Option Securities, the Option
Securities as to which the option is exercised shall be purchased by the
Underwriters, severally and not jointly, in their respective underwriting
obligation proportions set forth in Schedule A.
(b) If the Company has elected not to rely upon Rule 430A, the
initial public offering price for the Securities and the purchase price for the
Securities to be paid by the several Underwriters have been agreed upon and set
forth herein and an amendment to the Registration Statement containing such
information will have been filed before the Registration Statement becomes
effective.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Malizia, Spidi, Sloane & Fisch, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, at 9:30 a.m. on the third full
business day after the effective date of the Registration Statement, or at such
other time not more than seven full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned office of Malizia, Spidi, Sloane & Fisch, P.C., or
at such other place as shall be agreed upon by the Company and the
Representative, on the Date of Delivery as specified in the notice from the
Representative to the Company. Payment for the Initial Securities and the Option
Securities, if any, shall be made to the Company by funds available the same day
to the Company, against delivery to the Representative for the respective
accounts of the several Underwriters of certificates for the Securities to be
purchased by them.
(d) Certificates for the Securities to be purchased by the
Underwriters shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two full business days before the
Closing Time or the Date of Delivery, as the case may be. The certificates for
the Initial Securities or the Option Securities to be purchased will be made
available in New York City for examination and packaging by the Underwriters not
later than 10:00 a.m. on the business day prior to the Closing Time or the Date
of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representative, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or Option Securities to
be purchased by any Underwriter whose check or checks shall not have been
received by the Closing Time or the Date of Delivery, as the case may be.
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Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and will notify the Representative
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities or capital stock, for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Company has elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Representative shall not have previously been advised and have
previously been furnished a copy, or to which the Representative or counsel for
the Representative shall reasonably object.
(c) The Company has furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act) and signed copies of all
consents and certificates of experts as you may reasonably request and has
furnished or will furnish to you, for each other Underwriter, one conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver or cause to be delivered to each
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
or cause to be delivered to each Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when
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the Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as supplemented or amended) as such Underwriter may
reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Representative or counsel for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representative may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement and to qualify the shares of Class A Common Stock issuable upon
conversion of the Debt Securities for offering and sale upon conversion of the
Debt Securities under the applicable securities laws of such states and other
jurisdictions as you may designate and to maintain such qualifications in effect
for such period as any Debt Securities may be issued and outstanding and shares
of Class A Common Stock issuable upon conversion thereof; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a period of at least 12 months beginning
after the effective date of the Registration Statement but not later than the
first day of the Company's fiscal quarter next following such effective date.
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(h) The Company and the Bank will use the net proceeds
received by them from the sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Representative, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
(k) The Company will file with the NYSE and Nasdaq all
documents and notices required by the NYSE and Nasdaq, respectively, of
companies that have issued securities that are traded on the NYSE and Nasdaq.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Representative to prepare one or more "blue
sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering
of the Securities as contemplated by the Prospectus and a copy of such Blue Sky
Survey or surveys shall be delivered to each of the Company and the
Representative.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Securities, prepare and distribute to each of the
Representative, counsel to the Representative and counsel to the Company, a
hard-bound copy of the documents used in connection with the issuance of the
Securities.
(o) At or prior to the Closing Time, the Company will deliver
to the Underwriter agreements (the "Lock-Up Agreements") executed by each of (i)
the Company's Chairman, Vice Chairman, President, Executive Vice Presidents and
their respective affiliates and (ii) its parent, BFC Financial Corporation, that
for a 120 day period from the Closing Time, they will not, without your prior
consent, sell, contract to sell or grant any option for the sale or otherwise
dispose of, directly or indirectly, any shares of Common Stock owned by them. At
or prior to the Closing Time, the Company shall deliver instructions to its
transfer agent
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authorizing it to place stop transfer orders on the Company's ledgers. However,
this subparagraph (o) shall not be construed to limit (1) the exercise of
options granted by the Company to purchase shares of Common Stock obtained prior
to the Closing Time by any individual subject to a Lock-Up Agreement or the sale
of underlying shares of Common Stock obtained from the exercise of such options
or (2) the sale of shares of Common Stock held by a BONA FIDE third party
pursuant to a written pledge agreement entered into prior to the Closing Time
for Common Stock owned by any person subject to a Lock-Up Agreement who
defaulted after the closing Time on the written pledge agreement.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Securities and the Blue Sky Survey, (c) the issuance and
delivery of the Securities to the Underwriters, including any transfer taxes
payable upon the sale of the Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) NYSE filing fees,
(f) fees and disbursements of counsel to the Representative in connection with
the Blue Sky Survey, (g) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses (other
than those applicable to the Blue Sky Survey) of the Representative's counsel
(such counsel's fees shall not exceed $__________) and general out-of-pocket
expenses of the Representative not to exceed $__________, and (i) all other
costs incident to the performance of the Company's obligations hereunder.
If (i) the Closing Time does not occur on or before ____________ ,
199___, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 10(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Representative, but
excluding fees associated with the Blue Sky Survey, which shall be paid directly
to the Representative's counsel.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later
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time or on such later date as you may agree to in writing; at the Closing Time
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or shall be pending or, to the Underwriters' knowledge or
the knowledge of the Company shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the Representative. If the
Company has elected to rely upon Rule 430A, a prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A).
(b) At the Closing Time, you shall have received a signed
opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., special
securities counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other Underwriters
in form and substance reasonably satisfactory to your counsel, to the effect
that:
(i) The Company is a corporation organized, validly existing
and in good standing under the laws of the State of Florida with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To such counsel's knowledge, the Company is qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(iii) The Bank is chartered under the laws of the United
States to transact the business of a federal savings bank and its
charter is in full force and effect with the Office of Thrift
Supervision, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as now being
conducted.
(iv) The deposit accounts of the Bank are insured by either
the Savings Association Insurance Fund or the Bank Insurance Fund of
the FDIC up to the maximum amount allowable under applicable law.
(v) To such counsel's knowledge, the Bank is qualified to
transact business as a foreign corporation in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
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(vi) The Company is registered as a savings & loan holding
company under the Home Owners' Loan Act, as amended.
(vii) None of the outstanding shares of capital stock of the
Company and none of the Securities was issued in violation of the
preemptive rights of any stockholder of the Company.
(viii) The authorized capital stock of the Company at
September 30, 1997 is as set forth in the Prospectus under the heading
"Capitalization".
(ix) To such counsel's knowledge, all of the outstanding
shares of capital stock of the Bank have been authorized and validly
issued and are fully paid and non-assessable; all of such shares are
owned by the Company, to such counsel's knowledge, free and clear of
any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, except as disclosed in Note 10 to the
consolidated financial statements in the Prospectus; none of such
shares was issued in violation of the preemptive rights of any
stockholder of the Bank.
(x) The Common Securities have been duly authorized and, when
delivered against payment of the purchase price therefore specified in
the Price Determination Agreement, will be validly issued and are fully
paid and non-assessable; no holder thereof is or will be subject to
personal liability solely by reason of being such a holder; the Common
Securities are not subject to the preemptive rights of any stockholder
of the Company.
(xi) The Securities conform in all material respects as to
legal matters to the description thereof contained in the Prospectus
and such descriptions conform in all material respects to the rights
set forth in the instruments defining the same.
(xii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated thereby and in the
Prospectus have each been duly and validly authorized by all necessary
action on the part of the Company.
(xiii) The Agreement has been duly executed and delivered by
the Company and, assuming due execution and delivery by all other
parties thereto, constitutes the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally, or by general equitable
principles and except with respect to the enforceability of the
indemnification and contribution or governing law provisions of this
Agreement, as to which such counsel need not express any opinion.
(xiv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, (other than under
the 1933 Act, the 1933 Act
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Rules, the TIA, and the securities or blue sky laws of the various
states and by-laws and rules of the NYSE), is required in connection
with the execution, delivery and performance of this Agreement or the
transactions contemplated therein or in the Prospectus or for the valid
authorization, issuance, sale and delivery of the Securities.
(xv) To such counsel's knowledge, there are no pending or
threatened legal or governmental proceedings, required under the 1933
Act and the 1933 Act Regulations to be described in the Prospectus that
are not described as required, other than litigation incidental to the
business of the Company or the Bank which is, considered in the
aggregate, not material to the Company and its subsidiaries, considered
as one enterprise, and to such counsel's knowledge, there are no
material contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(xvi) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described conform in all material respects with such
statutes, regulations, legal or governmental proceedings, contracts and
other documents.
(xvii) The statements made in the Prospectus under "Regulation
and Supervision", "Description of the Debentures," "Description of
Capital Stock," and "Federal and State Taxation" to the extent that
they constitute matters of law or legal conclusions, have been reviewed
by such counsel and are correct in all material respects.
(xviii) The execution and delivery of this Agreement, the
issuance and delivery of the Securities, the consummation by the
Company of the transactions contemplated in this Agreement and
compliance by the Company with the terms of this Agreement do not and
will not result in any violation of the charter or by-laws of the
Company or the Bank, and to such counsel's knowledge do not and will
not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Bank under (A) any indenture, mortgage or
loan agreement, or any other agreement or instrument to which the
Company or the Bank is a party or by which it may be bound or to which
any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise), (B) any
existing applicable law, rule or regulation, or (C) any judgment, order
or decree of any government, governmental instrumentality or court,
having jurisdiction over the Company or the Bank or any of its
properties.
(xix) The Registration Statement is effective under the 1933
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) has been made
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in the manner and within the time period required by Rule 424(b); to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the
1933 Act.
(xx) The Registration Statement (including the Rule 430A
Information, if applicable) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of their respective effective
or issue dates, comply or complied as to form in all material respects
to the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of
the dates they were filed with the Commission, complied as to form in
all material respects to the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
(xxii) To such counsel's knowledge, (1) there are no persons
with registration or other similar rights to have any securities of the
Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act, and (2) except as
described in the Prospectus and except for the 1996 Stock Option Plan
of the Company and options to purchase __________ shares of Class A
Common Stock granted under such plan, there are no options, warrants,
calls, convertible securities, employee benefit or other plans,
pre-emptive rights or commitments of any character relating to the
authorized but unissued capital stock of the Company or the Bank.
(xxiii) To the best of such counsel's knowledge, the Company
and the Bank each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its
business as presently conducted.
Counsel will supplementally provide a written statement that
such counsel has participated in the preparation of the Registration Statement
and Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom,
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as to which such counsel need express no opinion), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any statement
therein is modified or superseded in the Prospectus), as of the dates they were
filed with the Commission, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Representative, in which case the opinion shall state that
counsel believes that you and your counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Bank and certificates of public officials.
(c) At the Closing Time, the Representative shall have
received the favorable opinion of Malizia, Spidi, Sloane & Fisch, P.C., counsel
for the Representative, dated as of the Closing Time, to the effect that the
opinion delivered pursuant to Section 5(b) hereof appears on its face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by the Representative, and with
respect to the incorporation and legal existence of the Company, the Securities,
this Agreement, the Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters as the Representative
may require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon the opinions of counsel satisfactory to Malizia, Spidi, Sloane &
Fisch, P.C. as to form and scope and upon which the Representative may
justifiably rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Bank and certificates of public
officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, the Company shall
have complied in all material respects with Rule 430A (if it shall have elected
to rely thereon) and neither the Registration Statement nor the Prospectus, as
they may then be amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
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Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary that would be required to be
set forth in the Prospectus other than as set forth therein and no proceedings
shall be pending or, to the knowledge of the Company, threatened against the
Company or any subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, (v) the other
representations and warranties of the Company set forth in Section l(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Time, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or to the best knowledge of the Company threatened by the
Commission. At the Closing Time, the Representative shall have received a
certificate of the Chairman or the President, and the Chief Financial Officer or
Controller, of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the published 1933 Act Regulations, and stating
in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
1933 Act Regulations;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, for the unaudited interim consolidated financial
statements of the Company for the three-month and nine month periods
ended September 30, 1997 and September 30, 1996, including a reading of
comparative unaudited consolidated financial statements of the Company
which are available for periods subsequent to those subject to the SAS
No. 71 review noted above, a reading of the minutes of all meetings
20
<PAGE>
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since October 1, 1997,
inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1997 included in the
Registration Statement; or
(B) for the period from October 1, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year; or
(C) the unaudited consolidated financial statements
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Commission and pursuant to the 1933 Act and the
respective published rules and regulations of the Commission
thereunder; or
(D) such unaudited consolidated financial statements
included in the Prospectus are not in conformity with
generally accepted accounting principles ("GAAP") applied on a
basis substantially consistent with that of the audited
consolidated financial statements included in the Prospectus.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Summary Financial Information) (having compared such
items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
21
<PAGE>
(f) At the Closing Time, the Representative shall have
received from KPMG Peat Marwick LLP letters, in form and substance satisfactory
to the Underwriters and dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter(s) furnished pursuant to Section
5(e), except that the inquiries specified in Section 5(e) shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than two days prior
to the Closing Time.
(g) At the Closing Time, counsel for the Representative shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Securities as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Securities as contemplated in this Agreement shall be satisfactory in form and
substance to the Representative and to counsel for the Representative.
(h) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(i) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(j) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Company contained
herein and of the statements in any certificates furnished by the Company
hereunder as of such Date of Delivery (as if made on such date), to the
performance by the Company of its obligations hereunder and to the receipt by
you on the Date of Delivery of:
(1) A certificate, dated the Date of Delivery, of the
Chairman or the President and the Chief Financial Officer or Controller
of the Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(d) hereof remains true as of the Date of
Delivery;
(2) The favorable opinion of Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., counsel for the Company, addressed
to you and dated
22
<PAGE>
the Date of Delivery, in form satisfactory to Malizia, Spidi, Sloane &
Fisch, P.C., your counsel, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof;
(3) The favorable opinion of Malizia, Spidi, Sloane &
Fisch, P.C., dated the Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section
5(c) hereof; and
(4) Letters from KPMG Peat Marwick LLP addressed to
the Representative and dated the Date of Delivery, in form and
substance satisfactory to the Representative and substantially the same
in form and substance as the letters furnished to the Representative
pursuant to Section 5(e) hereof.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representative on notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 7, 8, 9 and 11
shall remain in effect.
Section 6. [INTENTIONALLY LEFT BLANK]
Section 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Underwriter, officers, directors, employees, agents, and counsel of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Securities under the "blue sky" or securities laws
thereof or filed with the Commission or any securities exchange; unless such
statement or omission or alleged statement or omission was made in reliance upon
and in conformity with written information concerning that Underwriter, the
Underwriting Agreement or the compensation of
23
<PAGE>
the Underwriters furnished to the Company by or on behalf of the Underwriters
expressly for inclusion in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant, or agreement of the Company contained in the Underwriting
Agreement. The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriters if the person
asserting any such losses, claims, damages or liabilities purchased Securities
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriters to such person, if such is required by
law, in connection with the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, provided,
that the Company delivered the Prospectus, as amended or supplemented, to the
Representative or the Underwriters on a timely basis to permit such delivery or
sending. For purposes of this section, the term "expense" shall include, but not
be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by any of the Representative's directors,
officers, employees and counsel according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of any
of the Underwriters, their respective directors, officers, employees, legal
counsel, agents and controlling persons within the meaning of the federal
securities laws. The foregoing agreement to indemnify shall be in addition to
any liability the Company may otherwise have to the Underwriters or the persons
entitled to the benefit of these indemnification provisions.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information about
that Underwriter, the Underwriting Agreement, or the compensation of that
Underwriter, furnished to the Company by that Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to
the indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve the indemnifying party from
its obligations to indemnify hereunder, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action, including the
employment of counsel satisfactory to the indemnified parties and payment of all
expenses of the indemnified party in connection with such action.
24
<PAGE>
Such indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or such indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those available to
one or more of the indemnifying parties, in any of which events such fees and
expenses shall be borne by the indemnifying party and the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. The Company shall be liable for any settlement of
any claim against any Underwriter (or its directors, officers, employees,
affiliates or controlling persons), made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not, without
the written consent of any Underwriter, settle or compromise any claim against
it based upon circumstances giving rise to an indemnification claim against the
Company hereunder unless such settlement or compromise provides that such
Underwriter and the other indemnified parties shall be unconditionally and
irrevocably released from all liability in respect to such claim.
(d) In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to these indemnification
provisions is made but it is found in a final judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and the Underwriters, on the other hand, shall contribute to the
amount paid or payable by such indemnified persons as a result of such loss,
liability, claim, damage and expense in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the underwriting, and also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, an Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
discount retained by it applicable to the Securities purchased by that
Underwriter.
(e) The indemnity and contribution agreements
contained herein are in addition to any liability which the Company may
otherwise have to the Underwriters.
(f) Neither termination nor completion of the
engagement of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall effect the indemnification obligations of the Company or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
25
<PAGE>
Section 8. [INTENTIONALLY LEFT BLANK]
Section 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company or any Underwriter or any
controlling person and will survive delivery of and payment for the Securities.
Section 10. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Securities or enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission or the NYSE or Nasdaq or if trading generally on the NYSE or in the
over-the-counter market has been suspended (other than suspensions in trading
generally for less than one trading day) or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the NASD or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium has been declared by either federal, Florida
authorities, or (v) if there shall have been such material and substantial
change in the market for securities in general or in political, financial or
economic conditions as in your reasonable judgment makes it inadvisable to
proceed with the Offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus, or (vi) if you reasonably determine (which
determination shall be in good faith) that there has not been satisfactory
disclosure of all relevant financial information relating to the Company in the
Company's disclosure documents and that the sale of the Securities is
unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 7 and 9 shall remain in effect.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the
26
<PAGE>
Defaulted Securities in such amounts as may be agreed upon and upon the terms
set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the Initial Securities, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective Initial Securities underwriting obligation
proportions bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if the amount of Defaulted Securities exceeds 10%
of the Initial Securities, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 11.
Section 12. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
c/o Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Attention: Bruce G. Miller, Senior Vice President
with a copy to:
John J. Spidi, Esq.
Malizia, Spidi, Sloane & Fisch, P.C.
One Franklin Square, Suite 700 East
1301 K Street, N.W.
Washington, D.C. 20005
27
<PAGE>
If to the Company:
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
Attention: Alan B. Levan, Chief Executive Officer
with a copy to:
Alison W. Miller, Esq.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flager Street, Suite 2200
Miami, Florida 33130
Section 13. PARTIES. This Agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person controlling the Company or the Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the several Underwriters of the Securities. All of the obligations of the
Underwriters hereunder are several and not joint.
Section 14. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 15. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 16. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
28
<PAGE>
Section 17. REPRESENTATION OF UNDERWRITERS. You will act for
the several Underwriters in connection with this financing, and any action under
or in respect of this Agreement taken by you as Representative will be binding
upon all Underwriters.
------------------------
29
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By:-------------------------
Name: Alan B. Levan
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By:__________________________
Name: Bruce G. Miller
Title: Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE
OF THE OTHER UNDERWRITERS
NAMED IN SCHEDULE A
30
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
AMOUNT OF
INITIAL COMMON PERCENTAGE OF INITIAL
SECURITIES TO COMMON SECURITIES
UNDERWRITER BE PURCHASED TO BE PURCHASED
----------- -------------- ---------------------
<S> <C> <C>
Ryan, Beck & Co, Inc............................................. %
TOTAL....................................................... 3,000,000 100%
========= ===
</TABLE>
31
<PAGE>
EXHIBIT A
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
3,000,000 Shares
Class A Common Stock
PRICE DETERMINATION AGREEMENT
__________ ____, 1997
RYAN, BECK & CO., INC.
As Representative of the several Underwriters
220 South Orange Avenue
Livingston, New Jersey 07039
Dear Sirs:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BankAtlantic Bancorp, Inc. (the "Company")
and the several Underwriters named in Schedules A and B thereto or hereto (the
"Underwriters") for whom Ryan, Beck & Co. is acting as representative (the
"Representative"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of 3,000,000 shares of Class A Common Stock, subject to a 450,000
shares adjustment (to cover over-allotments, if any) up to 3,450,000 shares of
Class A Common Stock (the "Common Securities"). This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
1
<PAGE>
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Representative as follows:
1. The public offering price per share for the Common
Securities shall be $--------.
2. The purchase price per share for the Common Securities to
be paid by the Underwriters shall be $________, representing an amount
equal to the public offering price set forth above, less $________ per
share.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 1(a) of
the Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A is a completed list of the several Underwriters, which shall be a
part of the Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New
Jersey.
2
<PAGE>
If the foregoing is in accordance with the understanding of the
Representative of the agreement between the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By: __________________________
Alan B. Levan
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By: __________________________
Bruce G. Miller
Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE OF
THE OTHER UNDERWRITERS NAMED IN
SCHEDULE A [ATTACHED TO THE UNDERWRITING AGREEMENT]
3
<PAGE>
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
$100,000,000
_____% Convertible Subordinated Debentures due 2007
UNDERWRITING AGREEMENT
________ ____, 1997
RYAN, BECK & CO., INC.
As Representative of the several Underwriters
220 South Orange Avenue
Livingston, New Jersey 07039
Dear Sirs:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the underwriters listed in Schedule A hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), $100,000,000 principal
amount of the Company's _____% Convertible Subordinated Debentures due 2007. The
aforesaid debentures ("Initial Debt Securities" or "Initial Securities") and all
or any part of the debentures subject to the option described in Section 2
hereof ("Option Debt Securities" or "Option Securities") are collectively herein
referred to as the "Debt Securities" or the "Securities." The Initial Debt
Securities are to be sold to each Underwriter, acting severally and not jointly,
in such amounts as are set forth in Schedule A hereto opposite the name of such
Underwriter. The Company also grants to the Underwriters the option described in
Section 2 to purchase all or any part of $15,000,000 principal amount of Option
Debt Securities to cover over-allotments. The Debt Securities are to be issued
pursuant to an indenture, dated as of __________ ____, 1997 (the "Indenture"),
between the Company, as issuer, and First Trust National Association, as trustee
(the "Trustee"). The Company has, outstanding, shares of class A common stock,
$0.01 par value per share ("Class A Common Stock") and shares of class B common
stock, $0.01 par value per share ("Class B Common Stock"). The Debt Securities
are convertible at any time prior to maturity, unless previously redeemed, into
shares of Class A Common Stock.
<PAGE>
The initial public offering price for the Securities, the
purchase price to be paid by the Underwriters for the Securities, the conversion
price at which the principal amount of the Debt Securities may be converted into
shares of Class A Common Stock, and the rate of interest to be paid on the Debt
Securities shall be agreed upon by the Company and the Representative, acting on
behalf of the several Underwriters, and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination Agreement may take the
form of an exchange of any standard form of written telecommunication between
the Company and the Representative and shall specify such applicable information
as is indicated in Exhibit A hereto. The offering of the Securities will be
governed by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and all
references herein to "this Agreement" shall be deemed to include, the Price
Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto
(excluding any Form T-1 other than Item 2 to Form T-1) and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it becomes effective and including documents filed after such
effective time under the Securities Exchange Act of 1934, as amended (the "1934
Act") is herein called the "Registration Statement", and the prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, included in the Registration Statement at the time
it becomes effective is herein called the "Prospectus" except that, if any
revised prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Securities differs from the prospectus
included in the Registration Statement at the time it becomes effective (whether
or not such prospectus is required to be filed pursuant to Rule 424(b)), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Securities (the "Offering") as soon as possible after the
Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Securities under a selected dealer
agreement, the form of which is set forth as Exhibit B to this Agreement.
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Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to and agrees with
each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (C)
neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 (other than Item 2 to such
Form T-1) which is an exhibit to the Registration Statement. The
statements contained under the caption "Underwriting" in the Prospectus
constitute the only information furnished to the Company in writing by
the Underwriters expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Date of Delivery, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, in each case after excluding any
statement that does not constitute a part of the Registration Statement
or the Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
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(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Representative,
will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Indenture has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and when duly executed by the Trustee, will constitute a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, or reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or general equitable principles.
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited consolidated financial statements included or incorporated
by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Indenture. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home
Owners' Loan Act as amended; each subsidiary of the Company that
conducts business as a savings association is duly authorized to
conduct such business in each jurisdiction in which such business is
currently conducted, except to the extent that the failure to be so
authorized would not
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have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise; and the deposit accounts of BankAtlantic,
A Federal Savings Bank (the "Bank") are insured by either the Savings
Association Insurance Fund or Bank Insurance Fund of the Federal
Deposit Insurance Corporation ("FDIC"), up to the maximum allowable
limits thereof. The Company has all such power, authority,
authorization, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and
to issue and sell the Securities.
(viii) The Bank is a federally chartered savings association
duly organized, validly existing and in good standing under the laws of
the United States with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Bank and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued
and are fully paid and non-assessable and are owned by the Company
directly or through one or more subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind, except as disclosed in Note 10 to the consolidated
financial statements in the Prospectus.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the capital stock of the Company and the
Securities conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same. Subsequent to such date, the Company has not issued,
and other than under the Company's existing option plans, savings plan
pursuant to Section 401(k) of the Internal Revenue Code ("401(k)
savings plan"), savings plan or outstanding warrants, is not obligated
to issue, any other shares of capital stock; without limiting the
generality of the foregoing and except for options to purchase
__________ shares of Class A Common Stock granted pursuant to the
Company's 1996 Stock Option Plan (a plan through which options for up
to an additional __________ shares of Class A Common Stock may be
granted) and except for options to purchase __________ shares of Class
B Common Stock granted pursuant to the Company's other option plans
(plans through which options for up to an additional __________ shares
of Class B Common Stock may be granted) there are no options, warrants,
calls, employee benefit or other plans, preemptive rights or
commitments of any character relating to the authorized but unissued
capital stock or any other equity security of the Company or the Bank,
except as disclosed in Note 10 to the consolidated financial statements
in the Prospectus.
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(xi) The Debt Securities have been duly and validly authorized
and, when authenticated in the manner provided for in the Indenture and
delivered against full payment of the purchase price therefore
specified in this Agreement, will be validly issued and will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or effecting creditors'
rights generally or by general equitable principles, and will be in the
form contemplated by, and entitled to the benefits of, the Indenture;
no holder thereof will be subject to personal liability solely by
reason of being a holder of the Debt Securities; such Debt Securities
are not subject to the preemptive rights of any stockholder of the
Company; and all corporate action required to be taken for the
authorization, issue and sale of the Debt Securities has been validly
taken. Upon conversion of the Debt Securities into shares of Class A
Common Stock in accordance with the terms of the Indenture, the Company
will cause such shares of Class A Common Stock on or before their
issuance to be validly issued, fully paid and non-assessable.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company.
(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular quarterly dividend paid on Class B Common Stock
and the regular quarterly dividend paid on the Class A Common Stock.
Neither the Company nor the Bank has any material liability of any
nature, contingent or otherwise, except as set forth in the Prospectus.
(xiv) Neither the Company nor the Bank is in violation of any
provision of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this
Agreement and the Indenture by the Company, the issuance and delivery
of the
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Securities, the consummation by the Company of the transactions
contemplated in this Agreement and the Indenture and the transactions
contemplated in the Registration Statement in connection with the
issuance and delivery of the Securities and compliance by the Company
with the terms of this Agreement and the Indenture have been duly
authorized by all necessary corporate action on the part of the Company
and do not and will not result in any violation of the charter or
by-laws of the Company or the Bank, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary under (A) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise) earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise) or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of its properties.
(xv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1934 Act, the Trust Indenture Act
of 1939, as amended ("TIA"), and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance,
sale and delivery of the Securities.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement and the Indenture; all
pending legal or governmental proceedings to which the Company or the
Bank is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a
manner adverse to the Company, would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
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<PAGE>
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xviii) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and its subsidiaries, considered as one
enterprise; all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and
under which the Company or the Bank holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
the Bank has any notice of any material claim that has been asserted by
anyone adverse to the rights of the Company or the Bank under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) Except as disclosed in the Prospectus, no labor problem
exists with the employees of the Company or with employees of the Bank
or to the best knowledge of the Company is imminent that could
materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxi) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xxii) There are no persons with registration or other similar
rights to have any securities of the Company registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act; however, the Company has undertaken in connection with the
issuance of its 6 3/4% Convertible Subordinated Debentures to
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<PAGE>
take reasonable steps to ensure that the shares of common stock
issuable upon exercise thereof may be issued without a legend
restricting transfer.
(xxiii) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxiv) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxv) The Company has filed with the New York Stock Exchange
(the "NYSE") all documents and notices required by the NYSE of
companies that have issued securities that are traded on the NYSE.
(xxvi) The Company has filed with The Nasdaq Stock Market
("Nasdaq") all documents and notices required by Nasdaq of companies
that have issued securities that are traded on Nasdaq.
(xxvii) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Representative or to counsel for the
Representative pursuant to this Agreement
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shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company that amount of Initial Debt Securities
set forth in Schedule A of the $100,000,000 principal amount of the Initial Debt
Securities at the purchase price and terms set forth in the Price Determination
Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional $15,000,000 principal amount of the Debt Securities
in accordance with the terms set forth in the Price Determination Agreement. The
option hereby granted will expire at 5:00 p.m. on the 30th day after the date
the Registration Statement is declared effective by the Commission (or at 5:00
p.m. on the next business day if such 30th day is not a business day) and may be
exercised, on one occasion only, solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the time, date and place of payment and delivery for
the Option Securities. Such time and date of delivery (the "Date of Delivery")
shall be determined by the Representative but shall not be later than five full
business days after the exercise of said option, nor in any event prior to
Closing Time, as hereinafter defined, nor earlier than the second business day
after the date on which the notice of the exercise of the option shall have been
given. If the option is exercised as to all or any portion of the Option
Securities, the Option Securities as to which the option is exercised shall be
purchased by the Underwriters, severally and not jointly, in their respective
underwriting obligation proportions set forth in Schedule A.
(b) If the Company has elected not to rely upon Rule 430A, the
initial public offering price for the Securities, the purchase price for the
Securities to be paid by the several Underwriters and the interest rate on,
conversion price of, and redemption provisions of the Debt Securities have been
agreed upon and set forth herein and an amendment to the Registration Statement
containing such information will have been filed before the Registration
Statement becomes effective.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Malizia, Spidi, Sloane & Fisch, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, at 9:30 a.m. on the third full
business day after the effective date of the Registration Statement, or at such
other time not more than seven full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the
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event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
for, such Option Securities shall be made at the above-mentioned office of
Malizia, Spidi, Sloane & Fisch, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, on the Date of Delivery as specified
in the notice from the Representative to the Company. Payment for the Initial
Securities and the Option Securities, if any, shall be made to the Company by
funds available the same day to the Company, against delivery to the
Representative for the respective accounts of the several Underwriters of
certificates for the Securities to be purchased by them.
(d) Certificates for the Securities to be purchased by the
Underwriters shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two full business days before the
Closing Time or the Date of Delivery, as the case may be. The certificates for
the Initial Securities or the Option Securities to be purchased will be made
available in New York City for examination and packaging by the Underwriters not
later than 10:00 a.m. on the business day prior to the Closing Time or the Date
of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representative, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or Option Securities to
be purchased by any Underwriter whose check or checks shall not have been
received by the Closing Time or the Date of Delivery, as the case may be.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and will notify the Representative
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities or capital stock, for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Company has elected to rely
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upon Rule 430A, to the Prospectus (including documents incorporated by reference
into such prospectus or to the Prospectus) of which the Representative shall not
have previously been advised and have previously been furnished a copy, or to
which the Representative or counsel for the Representative shall reasonably
object.
(c) The Company has furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act) and signed copies of all
consents and certificates of experts as you may reasonably request and has
furnished or will furnish to you, for each other Underwriter, one conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver or cause to be delivered to each
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
or cause to be delivered to each Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as such Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Representative or counsel for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
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(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representative may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement and to qualify the shares of Class A Common Stock issuable upon
conversion of the Debt Securities for offering and sale upon conversion of the
Debt Securities under the applicable securities laws of such states and other
jurisdictions as you may designate and to maintain such qualifications in effect
for such period as any Debt Securities may be issued and outstanding and shares
of Class A Common Stock issuable upon conversion thereof; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a period of at least 12 months beginning
after the effective date of the Registration Statement but not later than the
first day of the Company's fiscal quarter next following such effective date.
(h) The Company and the Bank will use the net proceeds
received by them from the sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Representative, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
(k) The Company will file with the NYSE and Nasdaq all
documents and notices required by the NYSE and Nasdaq, respectively, of
companies that have issued securities that are traded on the NYSE and Nasdaq.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Representative to prepare one or more "blue
sky" surveys (each, a "Blue Sky Survey")
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for use in connection with the offering of the Securities as contemplated by the
Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to
each of the Company and the Representative.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Securities, prepare and distribute to each of the
Representative, counsel to the Representative and counsel to the Company, a
hard-bound copy of the documents used in connection with the issuance of the
Securities.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Securities and the Blue Sky Survey, (c) the issuance and
delivery of the Securities to the Underwriters, including any transfer taxes
payable upon the sale of the Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) Nasdaq filing fees,
(f) fees and disbursements of counsel to the Representative in connection with
the Blue Sky Survey, (g) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses (other
than those applicable to the Blue Sky Survey) of the Representative's counsel
(such counsel's fees shall not exceed $__________) and general out-of-pocket
expenses of the Representative not to exceed $__________, and (i) all other
costs incident to the performance of the Company's obligations hereunder.
If (i) the Closing Time does not occur on or before ____________ ,
199___, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 10(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Representative, but
excluding fees associated with the Blue Sky Survey, which shall be paid directly
to the Representative's counsel.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and
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warranties of the Company contained herein or in certificates of any officer of
the Company or any subsidiary delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Company
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Representative. If the Company has elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a signed
opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., special
securities counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other Underwriters
in form and substance reasonably satisfactory to your counsel, to the effect
that:
(i) The Company is a corporation organized, validly existing
and in good standing under the laws of the State of Florida with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To such counsel's knowledge, the Company is qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(iii) The Bank is chartered under the laws of the United
States to transact the business of a federal savings bank and its
charter is in full force and effect with the Office of Thrift
Supervision, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as now being
conducted.
(iv) The deposit accounts of the Bank are insured by either
the Savings Association Insurance Fund or the Bank Insurance Fund of
the FDIC up to the maximum amount allowable under applicable law.
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(v) To such counsel's knowledge, the Bank is qualified to
transact business as a foreign corporation in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(vi) The Company is registered as a savings & loan holding
company under the Home Owners' Loan Act, as amended.
(vii) None of the outstanding shares of capital stock of the
Company and none of the Securities was issued in violation of the
preemptive rights of any stockholder of the Company.
(viii) The authorized capital stock of the Company at
September 30, 1997 is as set forth in the Prospectus under the heading
"Capitalization".
(ix) To such counsel's knowledge, all of the outstanding
shares of capital stock of the Bank have been authorized and validly
issued and are fully paid and non-assessable; all of such shares are
owned by the Company, to such counsel's knowledge, free and clear of
any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, except as disclosed in Note 10 to the
consolidated financial statements in the Prospectus; none of such
shares was issued in violation of the preemptive rights of any
stockholder of the Bank.
(x) The Debt Securities have been duly authorized and validly
issued and, when authenticated in the manner provided for in the
Indenture, and when delivered against payment of the purchase price
therefore specified in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, or
by general equitable principles, and will be in the form contemplated
by, and entitled to the benefits of, the Indenture; and no holder
thereof is or will be subject to personal liability solely by reason of
being such a holder; such Debt Securities are not subject to the
preemptive rights of any stockholder of the Company.
(xi) The Securities and the Indenture conform in all material
respects as to legal matters to the description thereof contained in
the Prospectus and such descriptions conform in all material respects
to the rights set forth in the instruments defining the same.
(xii) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated thereby
and in the Prospectus have each been duly and validly authorized by all
necessary action on the part of the Company.
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(xiii) The Indenture and this Agreement have each been duly
executed and delivered by the Company and, assuming due execution and
delivery by all other parties thereto, each constitutes the valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, or
by general equitable principles and except with respect to the
enforceability of the indemnification and contribution or governing law
provisions of this Agreement, as to which such counsel need not express
any opinion.
(xiv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, (other than under
the 1933 Act, the 1933 Act Rules, the TIA, and the securities or blue
sky laws of the various states and by-laws and rules of Nasdaq), is
required in connection with the execution, delivery and performance of
this Agreement or the Indenture or the transactions contemplated
therein or in the Prospectus or for the valid authorization, issuance,
sale and delivery of the Securities.
(xv) To such counsel's knowledge, there are no pending or
threatened legal or governmental proceedings, required under the 1933
Act and the 1933 Act Regulations to be described in the Prospectus that
are not described as required, other than litigation incidental to the
business of the Company or the Bank which is, considered in the
aggregate, not material to the Company and its subsidiaries, considered
as one enterprise, and to such counsel's knowledge, there are no
material contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(xvi) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described conform in all material respects with such
statutes, regulations, legal or governmental proceedings, contracts and
other documents.
(xvii) The statements made in the Prospectus under "Regulation
and Supervision", "Description of the Debentures," "Description of
Capital Stock," and "Federal and State Taxation" to the extent that
they constitute matters of law or legal conclusions, have been reviewed
by such counsel and are correct in all material respects.
(xviii) The execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Securities, the
consummation by the Company of the transactions contemplated in this
Agreement and the Indenture and compliance by the Company with the
terms of this Agreement and the Indenture do not and will not result in
any violation of the charter or by-laws of the Company or the Bank, and
to such counsel's knowledge do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or
17
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imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Bank under (A) any indenture, mortgage or
loan agreement, or any other agreement or instrument to which the
Company or the Bank is a party or by which it may be bound or to which
any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise), (B) any
existing applicable law, rule or regulation, or (C) any judgment, order
or decree of any government, governmental instrumentality or court,
having jurisdiction over the Company or the Bank or any of its
properties.
(xix) The Registration Statement is effective under the 1933
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or threatened under the 1933 Act.
(xx) The Registration Statement (including the Rule 430A
Information, if applicable) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of their respective effective
or issue dates, comply or complied as to form in all material respects
to the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of
the dates they were filed with the Commission, complied as to form in
all material respects to the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
(xxii) To such counsel's knowledge, (1) there are no persons
with registration or other similar rights to have any securities of the
Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act, and (2) except as
described in the Prospectus and except for the 1996 Stock Option Plan
of the Company and options to purchase __________ shares of Class A
Common Stock granted under such plan, there are no options, warrants,
calls, convertible securities, employee benefit or other plans,
pre-emptive rights or commitments of any character relating to the
authorized but unissued capital stock of the Company or the Bank.
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(xxiii) To the best of such counsel's knowledge, the Company
and the Bank each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its
business as presently conducted.
Counsel will supplementally provide a written statement that
such counsel has participated in the preparation of the Registration Statement
and Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (C) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel need express no opinion, and except to the
extent that any statement therein is modified or superseded in the Prospectus),
as of the dates they were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Representative, in which case the opinion shall state that
counsel believes that you and your counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Bank and certificates of public officials.
(c) At the Closing Time, the Representative shall have
received the favorable opinion of Malizia, Spidi, Sloane & Fisch, P.C., counsel
for the Representative, dated as of the Closing Time, to the effect that the
opinion delivered pursuant to Section 5(b) hereof appears on its face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by the Representative, and with
respect to the incorporation and legal existence of the Company, the Securities,
this Agreement, the Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters as the Representative
may require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
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States, upon the opinions of counsel satisfactory to Malizia, Spidi, Sloane &
Fisch, P.C. as to form and scope and upon which the Representative may
justifiably rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Bank and certificates of public
officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, the Company shall
have complied in all material respects with Rule 430A (if it shall have elected
to rely thereon) and neither the Registration Statement nor the Prospectus, as
they may then be amended or supplemented, shall contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary that would be required to be
set forth in the Prospectus other than as set forth therein and no proceedings
shall be pending or, to the knowledge of the Company, threatened against the
Company or any subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, (v) the other
representations and warranties of the Company set forth in Section l(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Time, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or to the best knowledge of the Company threatened by the
Commission. At the Closing Time, the Representative shall have received a
certificate of the Chairman or the President, and the Chief Financial Officer or
Controller, of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the published 1933 Act Regulations, and stating
in effect that:
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With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
1933 Act Regulations;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, for the unaudited interim consolidated financial
statements of the Company for the three-month and nine month periods
ended September 30, 1997 and September 30, 1996, including a reading of
comparative unaudited consolidated financial statements of the Company
which are available for periods subsequent to those subject to the SAS
No. 71 review noted above, a reading of the minutes of all meetings of
the stockholders of the Company and the Bank, of the Board of Directors
of the Company and the Bank and of the Audit and Executive Committees
of the Board of Directors of the Bank since October 1, 1997, inquiries
of certain officials of the Company and its subsidiaries responsible
for financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1997 included in the
Registration Statement; or
(B) for the period from October 1, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year; or
(C) the unaudited consolidated financial statements
included in the Prospectus do not comply as to form in all
material respects with the applicable
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accounting requirements of the Commission and pursuant to the
1933 Act and the respective published rules and regulations of
the Commission thereunder; or
(D) such unaudited consolidated financial statements
included in the Prospectus are not in conformity with
generally accepted accounting principles ("GAAP") applied on a
basis substantially consistent with that of the audited
consolidated financial statements included in the Prospectus.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Summary Financial Information) (having compared such
items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
(f) At the Closing Time, the Representative shall have
received from KPMG Peat Marwick LLP letters, in form and substance satisfactory
to the Underwriters and dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter(s) furnished pursuant to Section
5(e), except that the inquiries specified in Section 5(e) shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than two days prior
to the Closing Time.
(g) At the Closing Time, counsel for the Representative shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Securities as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Securities as contemplated in this Agreement shall be satisfactory in form and
substance to the Representative and to counsel for the Representative.
(h) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
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(i) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(j) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Company contained
herein and of the statements in any certificates furnished by the Company
hereunder as of such Date of Delivery (as if made on such date), to the
performance by the Company of its obligations hereunder and to the receipt by
you on the Date of Delivery of:
(1) A certificate, dated the Date of Delivery, of the
Chairman or the President and the Chief Financial Officer or Controller
of the Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(d) hereof remains true as of the Date of
Delivery;
(2) The favorable opinion of Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A., counsel for the Company, addressed
to you and dated the Date of Delivery, in form satisfactory to Malizia,
Spidi, Sloane & Fisch, P.C., your counsel, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(3) The favorable opinion of Malizia, Spidi, Sloane &
Fisch, P.C., dated the Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section
5(c) hereof; and
(4) Letters from KPMG Peat Marwick LLP addressed to
the Representative and dated the Date of Delivery, in form and
substance satisfactory to the Representative and substantially the same
in form and substance as the letters furnished to the Representative
pursuant to Section 5(e) hereof.
(k) At the Closing Date, you shall have received an opinion
from counsel to the Trustee, dated the date of its delivery, addressed to you
and in form and substance satisfactory to Representative's counsel, to the
effect that:
(1) the Trustee is a national banking association or
state chartered bank or trust company and is validly existing in good
standing under the laws of the jurisdiction in which it is
incorporated;
(2) the Trustee has the power and authority to enter
into the Indenture and authenticate the Debt Securities as Trustee
under the Indenture;
(3) the Indenture has been duly authorized, executed
and delivered by the Trustee, as Trustee under the Indenture, and the
Indenture is valid and
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binding on the Trustee in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights generally or by
equitable principles relating to the availability of remedies; and
(4) the Debt Securities have been duly authenticated
and delivered by the Trustee, as Trustee, under the Indenture.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representative on notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 7, 8, 9 and 11
shall remain in effect.
Section 6. [INTENTIONALLY LEFT BLANK]
Section 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Underwriter, officers, directors, employees, agents, and counsel of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Securities under the "blue sky" or securities laws
thereof or filed with the Commission or any securities exchange; unless such
statement or omission or alleged statement or omission was made in reliance upon
and in conformity with written information concerning that Underwriter, the
Underwriting Agreement or the compensation of the Underwriters furnished to the
Company by or on behalf of the Underwriters expressly for inclusion in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in the Underwriting Agreement. The foregoing indemnification
with respect to any preliminary
24
<PAGE>
prospectus shall not inure to the benefit of the Underwriters if the person
asserting any such losses, claims, damages or liabilities purchased Securities
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriters to such person, if such is required by
law, in connection with the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, provided,
that the Company delivered the Prospectus, as amended or supplemented, to the
Representative or the Underwriters on a timely basis to permit such delivery or
sending. For purposes of this section, the term "expense" shall include, but not
be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by any of the Representative's directors,
officers, employees and counsel according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of any
of the Underwriters, their respective directors, officers, employees, legal
counsel, agents and controlling persons within the meaning of the federal
securities laws. The foregoing agreement to indemnify shall be in addition to
any liability the Company may otherwise have to the Underwriters or the persons
entitled to the benefit of these indemnification provisions.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information about
that Underwriter, the Underwriting Agreement, or the compensation of that
Underwriter, furnished to the Company by that Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to
the indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve the indemnifying party from
its obligations to indemnify hereunder, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action, including the
employment of counsel satisfactory to the indemnified parties and payment of all
expenses of the indemnified party in connection with such action. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or
25
<PAGE>
such indemnified party or parties shall have reasonably concluded that there may
be one or more legal defenses available to it or them or to other indemnified
parties which are different from or additional to those available to one or more
of the indemnifying parties, in any of which events such fees and expenses shall
be borne by the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties. The Company shall be liable for any settlement of any claim against any
Underwriter (or its directors, officers, employees, affiliates or controlling
persons), made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the written consent of any
Underwriter, settle or compromise any claim against it based upon circumstances
giving rise to an indemnification claim against the Company hereunder unless
such settlement or compromise provides that such Underwriter and the other
indemnified parties shall be unconditionally and irrevocably released from all
liability in respect to such claim.
(d) In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to these indemnification
provisions is made but it is found in a final judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and the Underwriters, on the other hand, shall contribute to the
amount paid or payable by such indemnified persons as a result of such loss,
liability, claim, damage and expense in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the underwriting, and also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, an Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
discount retained by it applicable to the Securities purchased by that
Underwriter.
(e) The indemnity and contribution agreements
contained herein are in addition to any liability which the Company may
otherwise have to the Underwriters.
(f) Neither termination nor completion of the
engagement of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall effect the indemnification obligations of the Company or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
Section 8. [INTENTIONALLY LEFT BLANK]
Section 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force
26
<PAGE>
and effect regardless of any investigation made by or on behalf of the Company
or any Underwriter or any controlling person and will survive delivery of and
payment for the Securities.
Section 10. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Securities or enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission, the NYSE or Nasdaq or if trading generally on the NYSE or in the
over-the-counter market has been suspended (other than suspensions in trading
generally for less than one trading day) or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the NASD or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium has been declared by either federal, Florida
authorities, or (v) if there shall have been such material and substantial
change in the market for securities in general or in political, financial or
economic conditions as in your reasonable judgment makes it inadvisable to
proceed with the Offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus, or (vi) if you reasonably determine (which
determination shall be in good faith) that there has not been satisfactory
disclosure of all relevant financial information relating to the Company in the
Company's disclosure documents and that the sale of the Securities is
unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 7 and 9 shall remain in effect.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
27
<PAGE>
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of Initial
Securities, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective Initial Securities
underwriting obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of Initial Securities,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 11.
Section 12. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
c/o Ryan, Beck & Co., Inc.
220 South Orange Avenue
Livingston, New Jersey 07039
Attention: Bruce G. Miller, Senior Vice President
with a copy to:
John J. Spidi, Esq.
Malizia, Spidi, Sloane & Fisch, P.C.
One Franklin Square, Suite 700 East
1301 K Street, N.W.
Washington, D.C. 20005
If to the Company:
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
Attention: Alan B. Levan, Chief Executive Officer
28
<PAGE>
with a copy to:
Alison W. Miller, Esq.
Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
150 West Flager Street, Suite 2200
Miami, Florida 33130
Section 13. PARTIES. This Agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person controlling the Company or the Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the several Underwriters of the Securities. All of the obligations of the
Underwriters hereunder are several and not joint.
Section 14. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 15. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 16. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
Section 17. REPRESENTATION OF UNDERWRITERS. You will act for
the several Underwriters in connection with this financing, and any action under
or in respect of this Agreement taken by you as Representative will be binding
upon all Underwriters.
------------------------
29
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By:_________________________
Name: Alan B. Levan
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By:_____________________________
Name: Bruce G. Miller
Title: Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE
OF THE OTHER UNDERWRITERS
NAMED IN SCHEDULE A
30
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
AMOUNT OF PERCENTAGE OF INITIAL
INITIAL DEBT SECURITIES DEBT SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
----------- ----------------------- ---------------------
<S> <C> <C>
Ryan, Beck & Co, Inc............................................. %
TOTAL....................................................... $100,000,000 100%
============ ===
</TABLE>
31
<PAGE>
EXHIBIT A
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
$100,000,000 of _____% Convertible Subordinated Debentures Due 2007
PRICE DETERMINATION AGREEMENT
__________ ____, 1997
RYAN, BECK & CO., INC.
As Representative of the several Underwriters
220 South Orange Avenue
Livingston, New Jersey 07039
Dear Sirs:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BankAtlantic Bancorp, Inc. (the "Company")
and the several Underwriters named in Schedules A and B thereto or hereto (the
"Underwriters") for whom Ryan, Beck & Co. is acting as representative (the
"Representative"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of $100.0 million, subject to a $15.0 million adjustment (to cover
over-allotments, if any) up to $115.0 million, in aggregate principal amount of
the _____% Convertible Subordinated Debentures Due 2007 of the Company (the
"Debt Securities"). This Agreement is the Price Determination Agreement referred
to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Representative as follows:
1. The public offering price per $1,000 principal amount for
the Debt Securities shall be 100.00% of the principal amount thereof.
1
<PAGE>
2. The purchase price for the Debt Securities to be paid by
the Underwriters shall be _____% of the principal amount thereof.
3. The interest rate on the Debt Securities shall be _____%
per annum.
4. The Debt Securities are convertible into shares of Class A
Common Stock of the Company at a conversion price of $_____ per share
(equivalent to a conversion rate of ______ shares per $1,000 principal
amount of Debt Securities).
5. The redemption price for the Debt Securities redeemable at
the option of the Company (expressed as a percentage of principal
amount), if redeemed during the twelve-month period beginning
__________ of the years indicated, shall be:
YEAR PERCENTAGE
---- ----------
%
and Thereafter
The amount payable upon redemption of the Debt Securities
shall include the redemption price shown above, together with accrued
and unpaid interest to the date fixed for redemption.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 1(a) of
the Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A is a completed list of the several Underwriters, which shall be a
part of the Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New
Jersey.
2
<PAGE>
If the foregoing is in accordance with the understanding of the
Representative of the agreement between the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By: __________________________
Alan B. Levan
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
RYAN, BECK & CO., INC.
By: __________________________
Bruce G. Miller
Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE OF
THE OTHER UNDERWRITERS NAMED IN
SCHEDULE A [ATTACHED TO THE UNDERWRITING AGREEMENT]
3
EXHIBIT 4.1
===============================================================================
BANKATLANTIC BANCORP, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of ___________, 1997
_____________________________
$115,000,000
___% Convertible Subordinated Debentures
Due 2007
===============================================================================
<PAGE>
BankAtlantic Bancorp, Inc.
Reconciliation and tie between Trust Indenture Act of
1939 and Indenture, dated as of ___________, 1997
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
ss.310(a)(1) ................................. 7.8
(a)(2) ................................. 7.8
(a)(3) ................................. N/A
(a)(4) ................................. N/A
(b) ................................. 7.8, 7.9
(c) ................................. N/A
ss.311(a) ................................. 7.12
(b) ................................. 7.12
(c) ................................. N/A
ss.312(a) ................................. 5.1, 5.2
(b) ................................. 5.2
(c) ................................. 5.2
ss.313(a) ................................. 5.3
(b)(1) ................................. N/A
(b)(2) ................................. N/A
(c) ................................. 5.3
(d) ................................. 5.3
ss.314(a) ................................. 5.4
(b) ................................. N/A
(c) ................................. 2.2
(d) ................................. N/A
(e) ................................. 1.3
(f) ................................. N/A
ss.315(a) ................................. 7.1(a)
(b) ................................. 7.2
(c) ................................. 7.1(b)
(d) ................................. 7.1(c)
(e) ................................. 6.14
ss.316(a)(1)(A) ................................. 6.12
(a)(1)(B) ................................. 6.13
(a)(2) ................................. N/A
(b) ................................. 6.8
ss.317(a)(1) ................................. 6.3
(a)(2) ................................. 6.4
(b) ................................. 4.3
ss.318(a) ................................. 1.7
</TABLE>
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
RECITALS OF THE COMPANY......................................................................................... 1
ARTICLE I
Definitions and Other Provisions of General Application................................................ 1
SECTION 1.1. DEFINITIONS.............................................................................. 1
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS..................................................... 8
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................................................... 8
SECTION 1.4. ACTION BY DEBENTUREHOLDERS............................................................... 9
SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY.................................................... 11
SECTION 1.6. NOTICES TO DEBENTUREHOLDERS; WAIVER...................................................... 11
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT........................................................ 12
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS................................................. 12
SECTION 1.9. SUCCESSORS AND ASSIGNS................................................................... 12
SECTION 1.10. SEPARABILITY CLAUSE..................................................................... 12
SECTION 1.11. BENEFITS OF INDENTURE................................................................... 12
SECTION 1.12. LEGAL HOLIDAYS.......................................................................... 12
SECTION 1.13. GOVERNING LAW........................................................................... 13
ARTICLE II
Debenture Forms........................................................................................ 13
SECTION 2.1. FORMS GENERALLY.......................................................................... 13
SECTION 2.2. DEBENTURES IN GLOBAL FORM................................................................ 13
SECTION 2.3. FORM OF DEBENTURE........................................................................ 14
ARTICLE III
The Debentures......................................................................................... 24
SECTION 3.1. GENERAL TITLE; GENERAL LIMITATIONS; TERMS
OF DEBENTURE............................................................................. 24
SECTION 3.2. DENOMINATIONS............................................................................ 24
SECTION 3.3. EXECUTION, AUTHENTICATION AND DELIVERY................................................... 25
SECTION 3.4. TEMPORARY DEBENTURES..................................................................... 26
SECTION 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE................................................................................. 26
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN
DEBENTURES............................................................................... 29
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED....... ............................................................ 29
SECTION 3.8. PERSONS DEEMED OWNERS.................................................................... 31
SECTION 3.9. CANCELLATION............................................................................. 31
SECTION 3.10. COMPUTATION OF INTEREST.................................................................. 31
i--
<PAGE>
ARTICLE IV
Covenants.............................................................................................. 32
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST........................................................ 32
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.......................................................... 32
SECTION 4.3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN
TRUST.................................................................................... 32
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS........................................................ 34
SECTION 4.5. MAINTENANCE OF PROPERTIES................................................................ 34
SECTION 4.6. STATEMENT AS TO COMPLIANCE............................................................... 34
SECTION 4.7. CORPORATE EXISTENCE...................................................................... 35
SECTION 4.8. RESTRICTIONS ON DIVIDENDS, REDEMPTIONS AND
OTHER PAYMENTS........................................................................... 35
ARTICLE V
Debentureholders' Lists and Reports by the
Trustee and the Company................................................................................ 36
SECTION 5.1. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF DEBENTUREHOLDERS............................................................ 36
SECTION 5.2. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO DEBENTUREHOLDERS....................................................... 36
SECTION 5.3. REPORTS BY TRUSTEE....................................................................... 36
SECTION 5.4. REPORTS BY COMPANY....................................................................... 37
ARTICLE VI
Remedies............................................................................................... 38
SECTION 6.1. EVENTS OF DEFAULT........................................................................ 38
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT................................................................................ 39
SECTION 6.3. SUITS FOR ENFORCEMENT BY TRUSTEE......................................................... 40
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM......................................................... 40
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF DEBENTURES................................................................. 41
SECTION 6.6. APPLICATION OF MONEY COLLECTED........................................................... 41
SECTION 6.7. LIMITATION ON SUITS...................................................................... 42
SECTION 6.8. UNCONDITIONAL RIGHT OF DEBENTUREHOLDERS
TO RECEIVE PRINCIPAL AND INTEREST........................................................ 43
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES....................................................... 43
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE........................................................... 43
SECTION 6.11. DELAY OR OMISSION NOT A WAIVER........................................................... 43
SECTION 6.12. CONTROL BY DEBENTUREHOLDERS.............................................................. 44
SECTION 6.13. WAIVER OF PAST DEFAULTS.................................................................. 44
SECTION 6.14. UNDERTAKING FOR COSTS.................................................................... 44
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS......................................................... 45
ARTICLE VII
The Trustee............................................................................................ 45
ii--
<PAGE>
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES...................................................... 45
SECTION 7.2. NOTICE OF DEFAULTS....................................................................... 46
SECTION 7.3. CERTAIN RIGHTS OF TRUSTEE................................................................ 47
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF DEBENTURES............................................................................ 48
SECTION 7.5. MAY HOLD DEBENTURES...................................................................... 48
SECTION 7.6. MONEY HELD IN TRUST...................................................................... 48
SECTION 7.7. COMPENSATION AND REIMBURSEMENT........................................................... 49
SECTION 7.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION......................................................................... 49
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR................................................................................ 50
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................... 51
SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS OF TRUSTEE........................................................ 52
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.................................................................................. 52
ARTICLE VIII
Supplemental Indentures................................................................................ 52
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF DEBENTUREHOLDERS...................................................................... 52
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS......................................................................... 53
SECTION 8.3. EXECUTION OF SUPPLEMENTAL INDENTURES..................................................... 54
SECTION 8.4. EFFECT OF SUPPLEMENTAL INDENTURES........................................................ 55
SECTION 8.5. CONFORMITY WITH TRUST INDENTURE ACT...................................................... 55
SECTION 8.6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL
INDENTURES............................................................................... 55
SECTION 8.7. SUBORDINATION UNIMPAIRED................................................................. 55
ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease................................................... 55
SECTION 9.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS............................................................................ 55
SECTION 9.2. SUCCESSOR CORPORATION SUBSTITUTED........................................................ 56
SECTION 9.3. LIMITATION ON LEASE OF PROPERTIES AS
ENTIRETY................................................................................. 56
ARTICLE X
Satisfaction, Discharge and Defeasance................................................................. 56
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.................................................. 56
SECTION 10.2. APPLICATION OF TRUST MONEY............................................................... 58
SECTION 10.3. SATISFACTION, DISCHARGE AND DEFEASANCE OF
DEBENTURES............................................................................... 58
ARTICLE XI
Subordination of Debentures............................................................................ 60
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SECTION 11.1. SUBORDINATION........................................................................... 60
SECTION 11.2. DISTRIBUTION OF ASSETS, ETC............................................................. 61
SECTION 11.3. SUBROGATION............................................................................. 62
SECTION 11.4. OBLIGATION OF THE COMPANY UNCONDITIONAL................................................. 63
SECTION 11.5. PAYMENTS ON DEBENTURES PERMITTED........................................................ 64
SECTION 11.6. EFFECTUATION OF SUBORDINATION BY TRUSTEE................................................ 64
SECTION 11.7. KNOWLEDGE OF TRUSTEE.................................................................... 64
SECTION 11.8. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.................................................... 64
SECTION 11.9. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS
NOT IMPAIRED............................................................................ 64
SECTION 11.10. ALTERATION OF SENIOR INDEBTEDNESS....................................................... 65
SECTION 11.11. ARTICLE APPLICABLE TO PAYING AGENTS..................................................... 65
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF
SENIOR INDEBTEDNESS......................................................................65
ARTICLE XII
Redemption............................................................................................. 65
SECTION 12.1. MANDATORY REDEMPTION.................................................................... 65
SECTION 12.2. OPTIONAL REDEMPTION..................................................................... 66
SECTION 12.3. NOTICES TO TRUSTEE...................................................................... 66
SECTION 12.4. SELECTION OF DEBENTURES TO BE REDEEMED.................................................. 66
SECTION 12.5. NOTICE OF REDEMPTION.................................................................... 66
SECTION 12.6. FFECT OF NOTICE OF REDEMPTION........................................................... 67
SECTION 12.7. DEPOSIT OF REDEMPTION PRICE............................................................. 67
SECTION 12.8. DEBENTURES REDEEMED IN PART............................................................. 68
SECTION 12.9. REPURCHASING OF DEBENTURES.............................................................. 68
ARTICLE XIII
Conversion of Debentures............................................................................... 69
SECTION 13.1. CONVERSION PRIVILEGE.................................................................... 69
SECTION 13.2. MANNER OF EXERCISE OF CONVERSION
PRIVILEGE............................................................................... 69
SECTION 13.3. CASH ADJUSTMENT UPON CONVERSION......................................................... 70
SECTION 13.4. CONVERSION PRICE........................................................................ 70
SECTION 13.5. ADJUSTMENT OF CONVERSION PRICE.......................................................... 70
SECTION 13.6. EFFECT OF RECLASSIFICATIONS,
CONSOLIDATIONS, MERGERS OR SALES ON
CONVERSION PRIVILEGES................................................................... 74
SECTION 13.7. TAXES ON CONVERSIONS.................................................................... 75
SECTION 13.8. COMPANY TO RESERVE STOCK................................................................ 75
SECTION 13.9. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY
FOR CERTAIN MATTERS..................................................................... 75
SECTION 13.10. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS................................................ 76
ARTICLE XIV
Immunity of Directors, Officers, Employees
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and Stockholders....................................................................................... 76
SECTION 14.1. EXEMPTION FROM INDIVIDUAL LIABILITY..................................................... 76
</TABLE>
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THIS INDENTURE, dated as of ___________, 1997, by and between
BankAtlantic Bancorp, Inc., a corporation duly organized and existing under the
laws of the State of Florida ("the Company"), and First Trust National
Association (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation, execution and delivery of
its debentures, to be known as ___% Convertible Subordinated Debentures due 2007
(the "Debentures"), the amount and terms of which are as hereinafter provided;
and, to provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture.
All acts and things necessary to make the Debentures, when executed by
the Company and authenticated and delivered by the Trustee as in this Indenture
provided, the valid, binding and legal obligations of the Company, and to
constitute these presents as a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issue hereunder of the Debentures have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power vested in it, executes
this Indenture and proposes to make, execute, and deliver the Debentures.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
Each party agrees as follows for the benefit of the other party and for
the equal and proportionate benefit of the Debentureholders (as hereinafter
defined):
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1. DEFINITIONS.
For all purposes of this Indenture and of any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as
well as the singular;
(2) the term "this Indenture" means this instrument as
originally executed or as it may from time to time be
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supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions
hereof;
(3) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in effect on the date of execution of this
Indenture; and
(5) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as
originally executed; the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision;
Certain terms used principally in Article Seven are defined in that
Article.
"Act" when used with respect to any Debentureholder has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are required
hereunder they may be made (unless otherwise expressly provided herein) on the
same or different days of the week and in the same or different Authorized
Newspapers.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday nor
other day on which banking institutions in the Place of Payment are authorized
by law or required by executive order to close.
"Capitalized Lease Obligation" means any lease obligation of a Person
incurred with respect to any property (whether real, personal or mixed) acquired
or leased by such Person and used in its business that is required to be
recorded as a capitalized lease in accordance with generally accepted accounting
principles.
"Capital Stock" means any and all shares, interests, participation
rights or other equivalents (however designated) of corporate stock.
"Class A Common Stock" means the class of stock which, at the date of
this Indenture, is designated as Class A Common Stock, par value $.01 per share,
of the Company and the class or classes of stock, if any, into which such Class
A Common Stock may thereafter be changed or reclassified.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board of Directors, President or a Vice
President, and delivered to the Trustee.
"Conversion Price" means the price per share of Class A Common Stock
from time to time in effect at which Debentures may be converted into Class A
Common Stock pursuant to Article Thirteen hereof.
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<PAGE>
"Debentures" means the debentures authenticated and delivered
under this Indenture.
"Debentureholder" or "Holder" means a Person in whose name a Debenture
is registered in the Debenture Register.
"Debenture Register" and "Debenture Registrar" have the
respective meanings specified in Section 3.5.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means The Depositary Trust Company or any other clearing
agency registered under the Securities Exchange Act of 1934, as amended,
subsequently designated as Depositary by the Company.
"Event of Default" has the meaning specified in Section 6.1.
"Indebtedness" means (i) all Obligations of the Company for borrowed
money (whether or not the recourse of the lender is to the whole of the assets
of the Company or only to a portion thereof), (ii) all indebtedness of the
Company which is evidenced by a note, debenture, bond or other similar
instrument, including Capitalized Lease Obligations, (iii) all indebtedness of
the Company representing the unpaid balance of the purchase price of any goods
or other property or balance owed for any services rendered, (iv) all
indebtedness of the Company, including Capitalized Lease Obligations incurred,
assumed or given in an acquisition (whether by way of purchase, merger or
otherwise) of any business, real property or other assets, (v) any indebtedness
of others described in the preceding clauses (i), (ii), (iii) and (iv) that the
Company has guaranteed or for which it is otherwise liable and (vi) any
amendment, renewal, extension, deferral, modification, restructuring or
refunding of any such indebtedness, obligation or guarantee.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Debentures.
"Maturity" when used with respect to any Debenture means the date on
which the principal of and interest on such Debenture becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees and other liabilities
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<PAGE>
payable from time to time and obligations performable under the documentation
governing such Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may,
except as otherwise expressly provided in this Indenture, be counsel for the
Company.
"Outstanding" when used with respect to Debentures means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Debentures;
(iii) Debentures in exchange for or in lieu of which other
Debentures have been authenticated and delivered pursuant to this
Indenture; and
(iv) Debentures which have been surrendered for
conversion pursuant to Article Thirteen hereof;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debentures Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Debentures and that
the pledgee is not the Company or any other obligor upon the Debentures or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Debentures on behalf of the
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<PAGE>
Company. The Company or any of its subsidiaries may act as Paying
Agent.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means a city or political subdivision thereof
designated as such by the Company in accordance with the terms of this
Indenture.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a mutilated, lost, destroyed or stolen Debenture shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Debenture.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at the location set forth in Section 1.5 or at such other
location as the Trustee may from time to time designate by written notice to the
Company.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the close of business on the 15th day of the calendar month
immediately preceding the calendar month in which such Interest Payment Date
occurs unless such 15th day is not a Business Day, in which event it shall be
the first Business Day immediately following such 15th day.
"Responsible Officer" when used with respect to the Trustee means the
chairman or the vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice-president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Responsible Officer of the Company" shall mean the Chairman or Vice
Chairman of the Board of Directors, the President, any Vice-President, the
Treasurer, the Controller or the Secretary of the Company.
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"Senior Indebtedness" means any and all Indebtedness of the Company,
except the Company's currently outstanding 9% Subordinated Debentures due 2005
(and 6 3/4% Convertible Subordinated Debentures due 2006 (each of which rank
pari passu in right of payment to the Debentures), except the Company's
currently outstanding 9 1/2% Junior Subordinated Debentures due 2027 (which rank
junior in right of payment to the Debentures) and except any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall be
subordinate or shall rank pari passu in right of payment to the Debentures.
"Special Payment Date" has the meaning specified in
Section 3.7.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Debenture means the
date specified in such Debenture as the fixed date on which the principal of and
the interest on such Debenture is due and payable.
"Subsidiary" means, with respect to the Company, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, officers or trustees
thereof is at the time owned in the aggregate, directly or indirectly, by the
Company and its Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 (15 U.S.C. ss.ss.77aaa-77bbbb), as in force at the date as of
which this instrument was executed, except as provided in Section
8.5.
"Vice President" when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"U.S. Government Obligations" means direct obligations of the
United States of America for the payment of which the full faith
and credit of the United States of America is pledged.
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<PAGE>
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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<PAGE>
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such counsel's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that such certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. ACTION BY DEBENTUREHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Debentureholders may be embodied in and evidenced by (i) one or more instruments
of substantially similar tenor signed by such Debentureholders in person or by
agent or proxy duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Debentureholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 7.1 and
7.3) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership or an employee of a public or governmental agency on behalf of such
corporation, association, partnership or agency, or by an agent or fiduciary,
such certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the
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authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Debentures shall be proved by the
Debenture Register or by a certificate of the Debenture Registrar thereof.
(d) At any time prior to the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any Holder which has consented to such
action may, by filing written notice with the Trustee at its Principal Corporate
Trust Office and upon proof of holding as provided in this Section 1.4, revoke
such action so far as concerns such Debenture. Except as aforesaid, any request,
demand, authorization, direction, notice, consent, waiver or other action by the
Holder of any Debenture shall be conclusive and binding upon such Holder and
upon all future Holders of such Debenture and of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debentures specified in the Indenture in connection with
such action shall be conclusive and binding upon the Company, the Trustee and
the Holders of all of the Debentures.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after such record date, but only Holders of record
at the close of business on such record date shall be deemed to be the Holders
for the purposes of determining whether Holders of the requisite proportion of
Outstanding Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Outstanding Debentures shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
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SECTION 1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Debentureholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Debentureholder or by the Company shall
be sufficient for every purpose hereunder if and only if made, given,
furnished or filed in writing to or with the Corporate Trust Department
of the Trustee at the Principal Corporate Trust Office which at the
date of this Indenture is 180 East Fifth Street, St. Paul, Minnesota
55101, or
(2) the Company by the Trustee or by any Debentureholder shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class, postage prepaid, to the Company addressed to it at 1750
East Sunrise Boulevard, Ft. Lauderdale, Florida 33304, to the attention
of the Corporate Secretary, or at any other address furnished in
writing to the Trustee by the Company.
SECTION 1.6. NOTICES TO DEBENTUREHOLDERS; WAIVER.
Where this Indenture provides for notice to Debentureholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class, postage prepaid, to
each Debentureholder affected by such event, at his address as it appears on the
Debenture Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Debentureholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Debentureholder shall affect the sufficiency of such notice with respect to
other Debentureholders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be equivalent of
such notice. Waivers of notice by Debentureholders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to
Debentureholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
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In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in an Authorized Newspaper or Authorized Newspapers as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 1.7. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is subject to the TIA and if any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions of TIA, such required
provision shall control.
SECTION 1.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Debentureholders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. LEGAL HOLIDAYS.
In any case where the date of an Interest Payment Date or the Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of the Debentures or this Indenture) payment of the principal
of, or interest on, any Debentures need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
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made on the nominal date of any such Interest Payment Date or
Stated Maturity.
SECTION 1.13. GOVERNING LAW.
This Indenture and the Debentures issued hereunder shall be controlled,
construed and enforced in accordance with the laws of the State of Florida
applicable to contracts made and to be performed entirely in that State.
ARTICLE II
Debenture Forms
SECTION 2.1. FORMS GENERALLY.
The Debentures and the certificates of authentication thereon shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon, as may be
required to comply with the rules of any securities exchange, or as may,
consistent herewith, be determined by the officers executing such Debentures, as
evidenced by their execution of the Debentures. Any portion of the text of any
Debenture may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Debenture.
The definitive Debentures shall be printed, lithographed or engraved on
steel engaged borders or may be produced in any other manner, all as determined
by the officers executing such Debentures as evidenced by their execution of
such Debentures.
SECTION 2.2. DEBENTURES IN GLOBAL FORM.
The Debentures may be issued in whole or in part in global form in the
form of one or more fully registered global Debentures (each being called a
"Global Debenture") and any such Debenture in global form may provide that it
shall represent the aggregate or specified amount of Outstanding Debentures from
time to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Debentures represented thereby may from time to time be reduced to
reflect exchanges. Any endorsement of a Global Debenture to reflect the amount,
or any increase or decrease in the amount or changes in the rights of Holders of
Outstanding Debentures represented thereby, shall be made in such manner and by
such Person or Persons as shall be specified therein. Any instructions by the
Company with respect to a Debenture in global
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form shall be in writing but, to the extent not relevant, need not comply with
Section 314(c) of the Trust Indenture Act.
SECTION 2.3. FORM OF DEBENTURE.
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[FORM OF FACE OF DEBENTURE]
___% Convertible Subordinated Debentures
Due 2007
No. $__________
BANKATLANTIC BANCORP, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on ___________, 1997.
Interest Payment Dates: ___________ 1 and ___________ 1
Record Dates: ___________ 15 and ___________ 15 (whether or
not a Business Day)
Dated: _____________, 1997
BANKATLANTIC BANCORP, INC.,
a Florida corporation
By:
By:
(SEAL)
This is one of the Debentures
referred to in the within-
mentioned Indenture:
First Trust National Association, as Trustee
By:______________________________
Authorized Signature
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BANKATLANTIC BANCORP, INC.
___% Convertible Subordinated Debentures
Due 2007
1. INTEREST. BankAtlantic Bancorp, Inc., a corporation duly organized
and existing under the laws of the State of Florida (the "Company"), promises to
pay simple interest on the principal amount of this Debenture at the rate per
annum shown above from the date of issuance until maturity. The Company will pay
interest semi-annually on each ___________ 1 and ___________ 1 of each year, or
if any such day is not a Business Day (as defined in the Indenture), on the next
succeeding Business Day (each an "Interest Payment Date").
Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; PROVIDED, that if there is no existing Default in the payment of
interest, and if this Debenture is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such next succeeding interest payment date; PROVIDED FURTHER,
that the first interest payment date shall be ___________ 1, 199___. The Company
shall pay interest on overdue principal at the then applicable interest rate on
the Debentures; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Debentures
(except defaulted interest) to the Persons who are registered Holders of
Debentures at the close of business on the record date next preceding the
interest payment date, even if such Debentures are canceled after such record
date and on or before such interest payment date. The Holder must surrender this
Debenture to a Paying Agent to collect principal payments. The Company will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Company, however,
may pay principal and interest by check payable in such money. It may mail an
interest check to a Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will
act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-registrar without notice to any
Debentureholder. The Company may act in any such capacity.
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4. INDENTURE. This Debenture is one of a duly authorized issue of
Debentures of the Company issued under and pursuant to an Indenture dated as of
___________, 1997 and all indentures supplemental thereto (herein referred to as
the "Indenture") between the Company and the Trustee. The terms of the
Debentures include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date the Indenture is qualified. The
Debentures are subject to all such terms, and Debentureholders are referred to
the Indenture and such Act for a statement of such terms. The Debentures are
limited to $115,000,000 in aggregate principal amount. Capitalized terms used in
this Debenture and not defined in this Debenture shall have the meanings set
forth in the Indenture.
5. OPTIONAL REDEMPTION. The Company may redeem all or any of the
Debentures at any time or from time to time after ___________ 1, 2000, at the
redemption prices (expressed in percentages of principal amount) set forth below
plus accrued interest, if any, to the redemption date, if redeemed during the
12-month period beginning ___________ 1, of the years indicated below.
YEAR PERCENTAGE
---- ----------
2000 104%
2001 103
2002 102
2003 101
2004 and thereafter 100
If the redemption date is subsequent to a record date with respect to
any interest payment date, and on or prior to such interest payment date the
Holder of such Debenture transfers the Debenture, then such accrued interest, if
any, shall be paid to the person who surrenders the Debenture for redemption
(and not the Holder as of the record date with respect to such interest payment
date), and no other interest shall be payable thereon.
6. MANDATORY REDEMPTION. The Company shall have no mandatory
redemption or sinking fund obligations with respect to the Debentures.
7. NOTICE OF REDEMPTION. Notice of redemption shall be
mailed at least thirty (30) days but not more than sixty (60) days
before the redemption date, to each Holder of Debentures to be
redeemed at its registered address. Debentures may be redeemed in
part but only in whole multiples of $1,000, unless all of the
Debentures held by a Holder are to be redeemed. On and after the
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redemption date, interest ceases to accrue on Debentures or portions of them
called for redemption.
8. CONVERSION OF DEBENTURE. Subject to the provisions of the Indenture,
the Holder of this Debenture is entitled, at his option, at any time prior to
maturity, to convert the principal amount of this Debenture (or any portion
hereof in whole multiples of $1,000) into shares of Class A Common Stock of the
Company, as said shares shall be constituted at the date of conversion, at the
conversion price of $___ principal amount of Debentures for each share of such
Class A Common Stock (except that, in case this Debenture or any portion thereof
shall be called for redemption, such conversion right shall terminate with
respect to this Debenture or portion thereof, as the case may be, so called for
redemption at the close of business on the third (3rd) business day next
preceding the date fixed for redemption as provided in the Indenture), or at the
adjusted conversion price in effect at the date of conversion determined as
provided in the Indenture, upon surrender of this Debenture to the Registrar
accompanied by written notice of election to convert, and (if new Debentures for
the unconverted portion of any Debenture shall be registered in a name other
than that of the Holder) by instruments of transfer, in form satisfactory to the
Registrar, duly executed by the registered Holder or by his duly authorized
attorney. Such surrender shall, if made during the period from the close of
business on the record date preceding an interest payment date to the opening of
business on such interest payment date (unless this Debenture or the portion
being converted shall have been called for redemption), also be accompanied by
payment in funds acceptable to the Company of an amount equal to the interest
payable on such interest payment date on the principal amount of this Debenture
then being converted. Subject to the foregoing, no adjustment is to be made on
conversion for interest accrued hereon (unless this Debenture or the portion
thereof being converted shall have been called for redemption) or for dividends
on Class A Common Stock issued on conversion. The Company is not required to
issue fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in registered
form without coupons and only in denominations of $1,000 and integral multiples
thereof. As provided in the Indenture, and subject to certain limitations
therein set forth, Debentures may be surrendered for exchange or transfer for a
like aggregate principal amount of Debentures of the same or different
authorized denominations, as requested by the Holder surrendering the same. The
Registrar and the Trustee may require the Holder to furnish appropriate
endorsements and transfer documents and to pay a sum sufficient to cover any tax
or other governmental charges that may
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be imposed in connection with the requested exchange or transfer. The Registrar
need not exchange or register the transfer of any Debentures or portion of a
Debenture selected for redemption. Also, it need not exchange or register the
transfer of any Debentures for a period of fifteen (15) days before a selection
of Debentures to be redeemed or during the period between a record date and the
next succeeding interest payment date.
10. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Debenture, the Company, the Trustee and
their respective agents may deem and treat the person in whose name this
Debenture is registered as the absolute owner hereof, whether or not this
Debenture shall be overdue and notwithstanding any notation of ownership or
other writing hereon, for the purpose of receiving payment of or on account of
the principal hereof and interest hereon, and for all other purposes, and
neither the Company, the Trustee, nor their agents shall be affected by any
notice to the contrary. The registered Holder of a Debenture shall be treated as
its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Debentures may be amended with the consent of the Holders of at
least 66 2/3% in principal amount of the then outstanding Debentures, and any
existing default (except a payment default) may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Debentures. Without the consent of any Debentureholder, the Indenture or the
Debentures may be amended to cure any ambiguity, defect or inconsistency, to
provide for assumption of Company obligations to Debentureholders, to provide
for uncertificated Debentures in addition to certificated Debentures, or to make
any change that does not adversely affect the rights of any Debentureholder.
12. DEFAULTS AND REMEDIES. Events of Default include: default in
payment of interest on the Debentures for thirty (30) days; default in payment
of principal on the Debentures at maturity, upon acceleration, redemption or
otherwise; failure by the Company for the period specified in the Indenture
after notice to it to perform certain covenants and to comply with any of its
other agreements in the Indenture or the Debentures; certain final judgments
which remain undischarged; and certain events of bankruptcy or insolvency. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 30% in principal amount of the then outstanding Debentures may declare all
the Debentures to be due and payable immediately, except that in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Debentures shall become due and payable immediately without further
action or notice. Debentureholders may not enforce the Indenture or the
Debentures
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except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Debentures. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Debentures may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Debentureholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee under the Indenture,
in its individual or any other capacity may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
14. SUBORDINATION. The indebtedness evidenced by the Debentures is, to
the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as defined in
the Indenture) of the Company whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed or guaranteed, and is not secured by
any collateral, neither the assets of the Company nor any of its Affiliates or
Subsidiaries. Each Holder, by acceptance hereof, agrees to and shall be bound by
all provisions of the Indenture. Further, each Holder authorizes and directs the
Trustee to take such action on its behalf as may be necessary or appropriate to
acknowledge or effectuate, as between such Holder and the holders of Senior
Indebtedness, the subordination of this Debenture as provided in the Indenture,
and appoints the trustee its attorney-in-fact for any and all such purposes.
15. NO RECOURSE AGAINST OTHERS. No recourse shall be had for the
payment of the principal of or the interest on this Debenture, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture against any stockholder, officer, director, or employee, as such,
past, present or future, of the Company, its Subsidiaries, or any predecessor or
successor corporations, or entities, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
16. AUTHENTICATION. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
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17. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Debentureholder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any Debentureholder upon written request
and without charge a copy of the Indenture. Request may be made to:
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, FL 33304
Attention: Secretary
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we)
assign and transfer this Debenture to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
______________________________________________________________________ agent to
transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Date:_________________________
Your Signature:
(Sign exactly as your name appears on the
face of this Debenture)
Signature Guarantee:___________________________________________________________
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[FORM OF CONVERSION NOTICE]
BANKATLANTIC BANCORP, INC.
The undersigned owner of this Debenture hereby irrevocably exercises
the option to convert this Debenture, or the portion hereof (which is $1,000 or
a whole multiple thereof) below designated, into shares of Class A Common Stock
of BankAtlantic Bancorp, Inc. in accordance with the terms of the Indenture
referred to in this Debenture, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Debentures representing any unconverted principal
amount hereof, be issuable and delivered to the registered holder hereof unless
a different name has been indicated below. If shares are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Debenture.
$_______________________________
Principal Amount to be Converted
(in a whole multiple of $1,000
if less than all)
Fill in for registration of shares of Class A Common Stock and Debentures if to
be issued otherwise than to the registered holder.
_______________________________ _______________________________________
Name Other person's Social Security
or other taxpayer identifying
number
_______________________________
Address
Please print your name and address including zip code:
_______________________________________________________________________________
_______________________________________________________________________________
________________________________ Date:__________________________________
Signature
Signature Guaranteed:__________________________________________________________
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ARTICLE III
The Debentures
SECTION 3.1. GENERAL TITLE; GENERAL LIMITATIONS; TERMS OF
DEBENTURE.
The Debentures shall be known and designated as the "___% Convertible
Subordinated Debentures due 2007 of the Company". Their Stated Maturity shall be
___________ 1, 2007, and they shall bear simple interest at the rate of ___% per
annum commencing upon the date of issuance until Maturity. Interest on each
Debenture shall be payable on the dates specified in the form of Debenture set
forth in Section 2.3. The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is limited to $115,000,000,
except for Debentures authenticated and delivered upon registration for transfer
of or in exchange for or in lieu of other Debentures, as provided herein.
The Person in whose name any Debenture is registered on the Regular
Record Date with respect to an Interest Payment Date will be entitled to receive
the interest payable on such Interest Payment Date, notwithstanding the
cancellation of such Debenture upon any registration of transfer or exchange or
conversion thereof subsequent to such Regular Record Date and prior to such
Interest Payment Date.
The principal of and interest on the Debentures shall be payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for public and private debts. Unless other arrangements are made
with the Debentureholders of record, interest payments shall be made by check
mailed to the Persons entitled thereto at their addresses last appearing on the
Debenture Register. Holders of Debentures must surrender Debentures at the
office or agency of the Company in the Place of Payment to collect the principal
payment on the Debentures.
The Debentures shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article Eleven, shall be pari passu
in right of payment to the Company's 9% Subordinated Debentures due 2005 and the
Company's 6 3/4% Convertible Subordinated Debentures due 2006 and shall be
senior in right of payment to the Company's 9 1/2% Junior Subordinated
Debentures due 2027.
SECTION 3.2. DENOMINATIONS.
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The Debentures shall be issuable only in fully registered form and
without coupons in denominations of $1,000 and any integral multiples thereof.
SECTION 3.3. EXECUTION, AUTHENTICATION AND DELIVERY.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board of Directors, its President or one of its Vice Presidents
under its corporate seal, which may be in facsimile form and may be imprinted or
otherwise reproduced thereon and attested by its Secretary or its Assistant
Secretary. The signature of any of these officers on the Debentures may be
manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a Company Order of the
authentication and delivery of such Debentures; and the Trustee shall
authenticate and deliver such Debentures as in this Indenture provided and not
otherwise. All Debentures shall be dated the date of their authentication.
Notwithstanding the foregoing, if the Debentures are to be issued in
whole or in part in global form, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such Debentures, authenticate and make available for delivery one or more Global
Debentures that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of the Outstanding Debentures, (ii) shall be
registered in the name of the Depositary for such Debentures or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Debentures in certificated form, this Debenture may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary. Unless this certificate is presented by
an authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) ("DTC"), to the issuer or its agent for registration of
transfer, exchange or
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payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein" or to such other effect as the
Depositary and the Trustee may agree.
Each Depositary for a Global Debenture must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee; and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Debentures which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Debentures in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
Except in the case of temporary Debentures in global form, which shall
be exchanged in accordance with the provisions hereof, if temporary Debentures
are issued, the Company will cause definitive Debentures to be prepared without
unreasonable delay. After the preparation of definitive Debentures, the
temporary Debentures shall be exchangeable for definitive Debentures upon
surrender of the temporary Debentures at the office or agency of the Company in
the Place of Payment, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debentures, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Debentures of authorized denominations. Until so
exchanged, the temporary Debentures shall in all respects be
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entitled to the same benefits under this Indenture as definitive
Debentures.
SECTION 3.5. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Principal Corporate Trust
Office a register (herein referred to as the "Debenture Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Debentures and the registration of transfers of
Debentures. Any such register shall be in written form or in any other form
capable of being converted into written form within a reasonable time. The
Trustee is hereby appointed "Debenture Registrar" for the purpose of registering
Debentures and transfers of Debentures as herein provided.
Upon surrender of a Debenture for registration of transfer accompanied
by a written instrument of transfer in form satisfactory to the Company or the
Debenture Registrar at the office or agency of the Company in the Place of
Payment, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Debentures of any authorized denominations, of a like aggregate principal
amount.
At the option of the Holder, Debentures (except a Global Debenture
representing all or a portion of the Debentures) may be exchanged for other
Debentures of any authorized denominations, of a like aggregate principal amount
upon surrender of the Debentures to be exchanged at such office or agency.
Whenever any Debentures are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debentures which
the Debentureholder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer duly executed,
by the Holder thereof or his attorney duly authorized in writing in form
satisfactory to the Company or the Debenture Registrar.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Debentures during a period beginning at the opening
of business on a Business Day fifteen (15) days
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before the day of any selection of Debentures for redemption under Section 12.4
hereof and ending at the close of business on the day of selection or (ii) to
register the transfer of or exchange of any Debentures so selected for
redemption in whole or in part, except the unredeemed portion of any Debentures
being redeemed in part.
No service charge shall be made for any registration of transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Debentures, other than
exchanges pursuant to Sections 3.4 or 8.6 not involving any transfer.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Debentures in certificated form, a
Global Debenture may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary or if at any time the Depositary ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, the Company shall appoint such a successor Depositary. If a successor
Depositary is not appointed by the Company within ninety (90) days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of certificated Debentures, shall authenticate and
make available for delivery Debentures in certificated form in an aggregate
principal amount equal to the principal amount of the Global Debenture or
Debentures in exchange for such Global Debenture or Debentures.
The Company may at any time and in its sole discretion determine that
the Debentures issued in the form of one or more Debentures shall no longer be
represented by such Global Debentures. In such event the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Debentures, shall authenticate and make available for
delivery, Debentures in certificated form and in an aggregate principal amount
equal to the principal amount of the Debenture or Debentures in global form in
exchange for such Debenture or Debentures in global form.
In any exchange provided for in any of the preceding two paragraphs,
the Company shall execute and the Trustee shall authenticate and make available
for delivery Debentures in certificated form in authorized denominations.
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Upon the exchange of a Global Debenture for Debentures in certificated
form, such Global Debentures shall be canceled by the Trustee. Debentures issued
in exchange for a Global Debenture pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall make available for delivery such
Debentures to the Persons in whose names such Debentures are so registered.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Debentures held
on their behalf by the Depositary, or the Debenture Registrar or the Trustee as
its custodian, or under the Global Debenture, and the Depositary may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Debenture for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Debenture.
The Holder of any Global Debenture may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Debentures.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If (i) any mutilated Debenture is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debenture, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debenture, a new Debenture of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay or authorize the payment of such
Debenture (without surrender
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thereof except in the case of a mutilated Debenture) if the applicant for such
payment shall furnish to the Company such security or indemnity as it may
require to save it harmless and, in the case of destruction, loss or theft,
evidence to the satisfaction of the Company of the destruction, loss or theft of
such Debenture and of the ownership thereof.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest payment.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date by virtue of having been such Holder;
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the
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proposed payment (the "Special Payment Date"), and at the same time the
Company shall deposit with the Trustee or the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 4.3), an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest, or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the Special Payment Date, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than fifteen (15) nor less than ten (10) days prior
to the Special Payment Date and not less than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Debentureholder at his address as it
appears in the Debenture Register, not less than ten (10) days prior to
such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in the Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been given as aforesaid, such Defaulted Interest shall be paid
on the Special Payment Date to the Persons in whose names the
Debentures (or their respective Predecessor Debentures) are registered
at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 3.8. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Debenture is registered as the absolute
owner of such Debenture for the purpose of receiving payment of principal of,
and, subject to Section 3.7,
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and interest on, such Debenture and for all other purposes whatsoever, whether
or not such Debenture be overdue and notwithstanding any notation of ownership
or other writing thereon, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9. CANCELLATION.
All Debentures surrendered for payment, registration of transfer or
exchange or conversion shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and, if not already canceled, shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Debentures previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Debentures
so delivered shall be promptly canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be destroyed and the Trustee shall deliver
a certificate of destruction to the Company.
SECTION 3.10. COMPUTATION OF INTEREST.
Interest on the Debentures shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE IV
Covenants
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest
on the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in the Place of Payment
where Debentures may be presented or surrendered for payment, where Debentures
may be surrendered for registration of transfer or for exchange or conversion
and where notices and demands to or upon the Company in respect of the
Debentures and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and of any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations,
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surrenders, notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
SECTION 4.3. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest or premium, if any,
on any of the Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest or
premium, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure to so act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any of the Debentures,
deposit with a Paying Agent a sum sufficient to pay the principal or interest or
premium, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such sums, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of
or interest or premium, if any, on the Debentures in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Debentures) in the
making of any payment of principal or interest or premium, if
any; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying
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Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest or
premium, if any, on any Debenture and remaining unclaimed for two (2) years
after such principal or interest or premium, if any, has become due and payable,
shall be paid to the Company upon Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debenture
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
the Place of Payment, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment or charge
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 4.5. MAINTENANCE OF PROPERTIES.
The Company will, in all material respects, cause all its properties
and the properties of its Subsidiaries used or useful in the conduct of the
business of the Company and its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be
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necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company or a Subsidiary from
discontinuing the operation and maintenance of any of its properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and is not disadvantageous in any material respect to the
Debentureholders.
SECTION 4.6. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, a written statement signed by the Chairman
of the Board of Directors, the President or a Vice President and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating, as to each signatory thereof,
that:
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(2) to the best of his or her knowledge, based on such review,
the Company has performed and fulfilled all of its obligations under
this Indenture throughout such year, or, if an Event of Default shall
have occurred, specifying each such Event of Default known to him and
the nature and status thereof.
The Company will, so long as any of the Debentures are Outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Event of Default,
an Officer's Certificate specifying such Event of Default.
SECTION 4.7. CORPORATE EXISTENCE.
Subject to Article Nine, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any right or franchise of the Company or its Subsidiaries if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or its Subsidiaries and
that the loss thereof is not disadvantageous in any material respect to the
Debentureholders.
SECTION 4.8. RESTRICTIONS ON DIVIDENDS, REDEMPTIONS AND OTHER
PAYMENTS.
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The Company shall not declare or pay any dividends on, or purchase,
redeem or otherwise acquire for value, any of its Capital Stock now or hereafter
outstanding (other than redemption or repurchase of the Debentures in accordance
with the terms of this Indenture) or return any capital to holders of its
Capital Stock as such, or make any distribution of assets to holders of its
Capital Stock as such, unless, on the date of any such dividend declaration or
the date of any such purchase, redemption, payment or distribution specified
above, the Company is not in default in the payment of interest on the
Debentures and no Event of Default has occurred and is continuing.
ARTICLE V
Debentureholders' Lists and Reports by the
Trustee and the Company
SECTION 5.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company will furnish or cause to be furnished to the Trustee (i)
not more than ten (10) days after each Regular Record Date, a list, in such form
as the Trustee may reasonably require, of the names and addresses of the Holders
of Debentures as of such Regular Record Date; provided, however, that the
Company shall not be required to furnish the Trustee the names and addresses of
the Holders of Debentures if the Trustee receives such names and addresses of
the Holders of Debentures in its capacity as Debenture Registrar.
SECTION 5.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debentures contained in the
most recent list furnished to the Trustee as provided in Section 5.1 and the
names and addresses of Holders of Debentures received by the Trustee at any time
that it is acting as Debenture Registrar (if so acting). The Trustee may destroy
any list furnished to it as provided in Section 5.1 upon receipt of a new list
so furnished.
(b) The Trustee shall comply with Section 312(b) of the TIA. The
Trustee, the Company, and any other Person shall have the protection of Section
312(c) of the TIA.
SECTION 5.3. REPORTS BY TRUSTEE.
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(a) So long as the Debentures are Outstanding, within sixty (60) days
after May 15 of each year (the "Reporting Date"), the Trustee shall, if required
by Section 313(a) of the TIA, transmit by mail to the Company and all
Debentureholders, as their names and addresses appear in the Debenture Register,
a brief report dated as of such Reporting Date that complies with Section 313(a)
of the TIA.
(b) A copy of each such report shall, at the time of such transmission
to the Company and the Debentureholders, be filed by the Trustee with each
securities exchange upon which the Debentures are listed, and also with the
Commission. The Company will notify the Trustee when the Debentures are listed
on any securities exchange.
SECTION 5.4. REPORTS BY COMPANY.
The Company will:
(1) file with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it will file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations;
(3) transmit by mail to all Debentureholders as their names
and addresses appear in the Debenture Register, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
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(4) furnish to the Trustee, not less often than annually, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants set forth in Article Four
of this Indenture. For purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under the Indenture.
ARTICLE VI
Remedies
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default", wherever used herein means any one of the following
events, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated, (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any
Debenture when it becomes due and payable, and continuance of
such default for a period of thirty (30) days; or
(2) default in the payment of the principal of any
Debenture at its Maturity; or
(3) default in the performance, or breach, of any material
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of sixty (60) days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least twenty-five percent (25%) in aggregate principal amount of
the Debentures then Outstanding, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition
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of or in respect of the Company under the Federal Bankruptcy Act or any
other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of ninety
(90) consecutive days; or
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Act or any other similar
applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action.
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in paragraphs (1), (2), (4) or (5) of
Section 6.1 occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than thirty percent (30%) in aggregate principal amount
of the Debentures then Outstanding may declare the principal of all the
Debentures to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Debentureholders), and upon any such
declaration, such principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Debentures then Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay:
(a) all overdue interest on all Debentures;
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(b) the principal of any Debentures which have
become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by
the Debentures; and
(c) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Debentures which have become due solely by such
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.3. SUITS FOR ENFORCEMENT BY TRUSTEE.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Debentureholders by such appropriate judicial proceedings, as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Debentures
and to file such other papers or documents as may be necessary or
advisable in order to have the claim of the Trustee (including any
claim for the reasonable compensation,
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expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Debentureholders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Debentureholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Debentureholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such proceeding.
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBENTURES.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
SECTION 6.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and in
case of the distribution of such money on account of principal or interest, upon
presentation of the Debentures and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the Trustee for amounts due under Section 7.7;
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Second: To the Debentureholders for amounts then due and unpaid upon
the Debentures for principal and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Debentures for principal and interest, respectively; and
Third: To the Company.
SECTION 6.7. LIMITATION ON SUITS.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee and the Company of a continuing Event of Default;
(2) the Holders of not less than 30% in aggregate principal
amount of the Outstanding Debentures shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for sixty (60) days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceedings; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such sixty (60) day period by the
Holders of a majority in principal amount of the Outstanding
Debentures;
it being understood and intended that no one or more Holders of Debentures shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Debentures.
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SECTION 6.8. UNCONDITIONAL RIGHT OF DEBENTUREHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right which is absolute and unconditional to
receive payment of the principal of and interest on such Debenture on the Stated
Maturity expressed in such Debenture, and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder.
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Debentureholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Debentureholder, then and in every such case the Company,
the Trustee and the Debentureholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Debentureholders shall continue as though no such proceeding had been
instituted.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Debentureholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT A WAIVER.
No delay or omission of the Trustee or of any Holder of any Debenture
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Debentureholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Debentureholders, as the case may be.
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SECTION 6.12. CONTROL BY DEBENTUREHOLDERS.
The Holders of a majority in principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Debentures may, on behalf of the Holders of all the Debentures, waive any past
default hereunder and its consequences, except a default:
(1) in the payment of the principal of or interest on
any Debenture, or
(2) in respect of a covenant or provision hereof which under
Article Eight cannot be modified or amended without the consent of the
Holders of each Outstanding Debenture affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding in the aggregate more than 10% in principal amount of
the
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Outstanding Debentures, or to any suit instituted by any Debentureholder for the
enforcement of the payment of the principal of, or interest on, any Debenture on
or after the Stated Maturity expressed in such Debenture.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
The Trustee
SECTION 7.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee, and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal
amount of the Outstanding Debentures relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.2. NOTICE OF DEFAULTS.
Within ninety (90) days after the occurrence of any default hereunder,
the Trustee shall transmit by mail to all Debentureholders, as their names and
addresses appear in the Debenture Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of any default of the character
specified in Section 6.1(1) or (2), the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Debentureholders; and provided, further, that in the case of
any default of the character specified in Section 6.1(3), no such
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notice to Debentureholders shall be given until at least sixty (60) days after
the occurrence thereof. For the purpose of this Section, "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
SECTION 7.3. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 7.1:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Debentureholders pursuant to this Indenture,
unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or
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investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) except with respect to Section 4.1 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's
covenants in Article Four hereof. In addition, the Trustee shall not be
deemed to have knowledge of any Event of Default except (i) any Event
of Default occurring pursuant to Sections 6.1(1) and 6.1(2) or (ii) any
Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
DEBENTURES.
The recitals contained herein and in the Debentures, except the
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debentures. The Trustee shall not be accountable for the use or
application by the Company of Debentures or the proceeds thereof.
SECTION 7.5. MAY HOLD DEBENTURES.
The Trustee, any Paying Agent, Debenture Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner or
pledgee of Debentures and, subject to Sections 7.8 and 7.12, if operative, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Debenture Registrar or such other agent.
SECTION 7.6. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder shall be held in a
separate interest-bearing account and such funds shall at all times be
segregated from all other funds and assets owned or held by the Trustee. Any
interest on any money received by the Trustee hereunder shall be for the benefit
of the Company and shall be paid to the Company upon Company Request.
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SECTION 7.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 7.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any State or Territory or of the District of Columbia or a
corporation or other person permitted to act as Trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $25,000,000, and subject to supervision or
examination by Federal or State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any of its Affiliates shall serve as Trustee hereunder.
The Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the Trust Indenture Act.
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If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 7.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Debentures, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Debentureholder who has been a bona
fide Holder of a Debenture or Debentures for at least six (6) months;
or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Debentureholder;
or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee and appoint a successor trustee, or (ii) subject to the provisions of
Section 6.14, any Debentureholder who has been a bona fide Holder of a Debenture
for at least six (6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one (1) year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Debentureholders and accepted appointment in the manner hereinafter provided,
any Debentureholder who has been a bona fide Holder of a Debenture for at least
six (6) months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Debentures as their names and addresses appear in the Debenture Register. Each
notice shall indicate the name of the successor Trustee and the address of its
Principal Corporate Trust Office.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the registration or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien, if any,
provided for in Section 7.7. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all of such rights, power
and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 7.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated with the same
effect as if the successor Trustee had itself authenticated such Debentures.
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
ARTICLE VIII
Supplemental Indentures
SECTION 8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
DEBENTUREHOLDERS.
Without the consent of the Holders of any Debentures, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company, and the assumption by any such successor of the
covenants of the Company herein and in the Debentures
contained; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of the Debentures, or to surrender any
right or power herein conferred upon the Company; or
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(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
adversely affect the interests of the Holders of the Debentures; or
(4) to convey, transfer, assign, mortgage or pledge to or with
the Trustee any property or assets which the Company may desire to
convey, transfer, assign, mortgage or pledge; or
(5) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Debentures in bearer form, registrable or not
registrable as to principal, and with or without interest coupons.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.1 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 8.2.
SECTION 8.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBENTUREHOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Debentures, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may amend this Indenture or the Debentures and enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of the
Debentures under this Indenture; provided, however, that no such amendment or
supplemental indenture shall, without the consent of the Holders of each
Outstanding Debenture affected thereby:
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(1) change the Stated Maturity of the principal of, or
interest on, any Debenture, or reduce the principal amount thereof, the
rate of interest or premium, if any, thereon or change any Place of
Payment where, or the coin or currency in which, any Debentures or the
interest or premium, if any, thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof; or
(2) except as otherwise permitted or contemplated in
Article Thirteen hereof, increase the Conversion Price of any
Debenture; or
(3) make any change in Section 6.8; or
(4) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for
any such supplemental indenture or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(5) modify any of the provisions of this Section or Section
6.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Debenture affected thereby.
It shall not be necessary for any Act of Debentureholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 8.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Debentures shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and such supplemental indenture
shall form a part of this Indenture for any and all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered thereunder
shall be bound thereby.
SECTION 8.5. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
SECTION 8.6. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture, may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
SECTION 8.7. SUBORDINATION UNIMPAIRED.
No supplemental indenture executed pursuant to this Article shall
affect the superior position of the holders of Senior Indebtedness with respect
to such Debentures.
ARTICLE IX
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 9.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its property and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
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conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State or
the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the Debentures and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 9.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger of the Company into another entity, or
any conveyance or transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 9.1, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein.
SECTION 9.3. LIMITATION ON LEASE OF PROPERTIES AS ENTIRETY.
The Company shall not lease its properties and assets substantially as
an entirety to any Person.
ARTICLE X
Satisfaction, Discharge and Defeasance
SECTION 10.1. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange or conversion of
Debentures herein expressly provided for), and the
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Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either:
(a) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Debentures for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 4.3) have been delivered to the Trustee canceled or
for cancellation at any time after the Distribution Date; or
(b) all such Debentures not theretofore delivered
to the Trustee canceled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one (1) year,
and the Company, in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for
the purpose, an amount in money or noncallable U.S. Government
Obligations sufficient to pay and discharge the entire indebtedness on
such Debentures not theretofore delivered to the Trustee canceled or
for cancellation, for principal and interest to the date of such
deposit (in the case of Debentures which have become due and payable)
or to the date of redemption or the Stated Maturity;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
However, the obligations in Article Thirteen shall survive until the Debentures
are no longer outstanding. Thereafter, notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee under
Section 7.7 shall survive.
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SECTION 10.2. APPLICATION OF TRUST MONEY.
All money deposited with the Trustee pursuant to Section 10.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee. Money
held by the Trustee in trust hereunder shall be held in a separate interest
bearing account and such funds shall at all times be segregated from all other
funds and assets owned or held by the Trustee. Any interest on any money
received by the Trustee hereunder shall be for the benefit of the Company and
shall be paid to the Company on Company Request.
Any money deposited with the Trustee in trust for the payment of the
principal of and interest on any Debenture pursuant to Section 10.1 and
remaining unclaimed for two (2) years after such principal or interest has
become due and payable, shall be paid to the Company on Company Request; and the
Holder of such Debenture shall thereafter, as an unsecured general creditor,
look to the Company for payment thereof, and all liability of the Trustee with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in an Authorized Newspaper in the Place
of Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
The Trustee shall promptly pay to the Company upon Company
Request any excess money or securities held by it at any time.
SECTION 10.3. SATISFACTION, DISCHARGE AND DEFEASANCE OF
DEBENTURES.
(a) The Company will be deemed to have been Discharged
(as defined below) from its obligations with respect to the
Debentures; or
(b) The Company will cease to be under any obligation to
comply with any term, provision or condition set forth in (i) Article Nine or
(ii) the terms, provisions or conditions of the Debentures (PROVIDED, HOWEVER,
that the Company may not cease to comply with any obligations as to which it may
not be Discharged pursuant to the definition of "Discharged"), if, in the case
of (a) and (b), with respect to the Debentures on the 91st day after the
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applicable conditions set forth below in (x) and (y) have been
satisfied:
(x)(1) the Company has paid or caused
to be paid all other sums payable with respect to the
Outstanding Debentures (in addition to any required under
(y)); and
(2) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of the entire indebtedness on all
Outstanding Debentures have been complied with;
(y)(1) the Company shall have deposited
or caused to be deposited irrevocably with the Trustee as a trust fund
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Debentures (i) an amount in the coin or
currency of the United States of America as at the time of such deposit
is legal tender for the payment of public and private debts or (ii)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than the due date of any payment of principal and
interest under the Debentures, money in an amount or (iii) a
combination of (i) and (ii) sufficient (in the opinion with respect to
(ii) and (iii) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee) to pay and discharge each installment of principal of, and
interest on, the outstanding Debentures on the dates such installments
of interest or principal are due;
(2)(i) no Event of Default or event
(including such deposit) which with notice or lapse of time or both
would become an Event of Default shall have occurred and be continuing
on the date of such deposit, (ii) no Event of Default as defined in
clause (4) or (5) of Section 6.1, or event which with notice or lapse
of time or both would become an Event of Default under either such
clause, shall have occurred within 90 days after the date of such
deposit and (iii) such deposit and the related intended consequence
under (a) or (b) will not result in any default or event of default
under any material indenture, agreement or other instrument binding
upon the Company or any Subsidiary or any of their properties; and
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(3) the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that Holders of the
Debentures will not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under
this Section 10.3 and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the
case if such option had not been exercised.
Any deposits with the Trustee referred to in clause (y)(1)
above will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee.
"Discharged" means that the Company will be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Debentures and to have satisfied all the obligations under this
Indenture relating to the Debentures (and the Trustee, at the expense of the
Company, will execute proper instruments acknowledging the same), except (A) the
rights of Holders thereof to receive, from the trust fund described in clause
(y)(1) above, payments of the principal of and the interest on the Debentures
when such payments are due, (B) the Company's obligations with respect to the
Debentures under Sections 3.5, 3.6., 10.2, 4.2, 4.3 (penultimate paragraph only)
and Article Thirteen and the Company's obligations to the Trustee under Sections
7.7 and 7.9 and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, will survive such discharge. The Company will reimburse the
trust fund for any loss suffered by it as a result of any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
any principal, premium or interest paid on such U.S. Government Obligations,
and, subject to the provisions of Section 7.7, will indemnify the Trustee
against any claims made against the Trustee in connection with any such loss.
ARTICLE XI
Subordination of Debentures
SECTION 11.1. SUBORDINATION.
The Company covenants and agrees, and each Holder of Debentures, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Debentures and the payment of the principal of, interest and
premium, if any, on each and all of the Debentures is expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Indebtedness, and that the
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subordination is for the benefit of the holder of Senior
Indebtedness.
SECTION 11.2. DISTRIBUTION OF ASSETS, ETC.
No payment on account of principal of or interest on the Debentures
shall be made, and no Debentures shall be purchased or otherwise acquired, and
no funds shall be set aside for the purchase of any Debentures, either directly
or indirectly, by the Company, if a default in the payment of the principal of
or premium, if any, or interest on any Senior Indebtedness shall have occurred
and continued beyond any applicable period of grace so as to entitle the holder
of such Senior Indebtedness to accelerate its maturity, unless and until such
default shall have been cured or waived or shall have ceased to exist or moneys
for the payment thereof shall have been duly set aside.
In the event of any distribution of assets of the Company upon any
dissolution, winding up, total or partial liquidation, or reorganization of the
Company, whether in bankruptcy, insolvency or receivership proceedings, or upon
any assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company, or otherwise,
(1) all of the principal of and premium, if any, and interest
on all Senior Indebtedness shall first be paid in full or moneys for
the full payment thereof shall have been duly set aside before any
payment is made upon the principal of or interest on any Debenture, and
(2) any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or
securities (other than securities of the Company as reorganized or
readjusted, or securities of the Company or of any other corporation
provided for by a plan of reorganization or readjustment, the payment
of which is subordinated to the payment of all principal of and
premium, if any, and interest on such Senior Indebtedness as may at the
time be outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment, provided that
the obligations represented by all notes or other evidences of Senior
Indebtedness are assumed by the new corporation, if any, resulting from
any such reorganization or readjustment and provided further that the
rights of the holders of Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or
readjustment), to which the Debentureholders would be entitled except
for the provisions of this Article, shall be paid by the liquidating
trustee or agent or other Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or
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liquidating trustee or otherwise, to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective amounts of
Senior Indebtedness held by such holder) or their representatives, to
the extent necessary to pay the principal of and premium, if any, and
interest on all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to the holders of Senior
Indebtedness, before any payment or distribution is made to the
Debentureholders or to the Trustee.
If the payment of principal of and any interest on the Debentures is
accelerated because of an Event of Default, no payment on account of principal
of or interest on the Debentures shall be made until all of the principal of and
premium, if any, and interest on all Senior Indebtedness has been paid in full
or due provision has been made for such payment.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company as reorganized or
readjusted, or securities of the Company or of any other corporation provided
for by a plan of reorganization or readjustment, the payment of which is
subordinated to the payment of all principal of and premium, if any, and
interest on such Senior Indebtedness as may at the time be outstanding and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment provided that the obligations represented by all notes or other
evidences of Senior Indebtedness are assumed by the new corporation, if any,
resulting from any such reorganization or readjustment and provided further that
the rights of the holders of Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment), shall be received
by the Trustee or any Holder in contravention of any of the terms hereof, such
payment or distribution or security shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustees or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
SECTION 11.3. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness, the
Debentureholders shall be subrogated (equally and ratably with the holders of
the Company's currently outstanding 9% Subordinated
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Debentures due 2005, the Company's currently outstanding 6 3/4% Convertible
Subordinated Debentures due 2006 and all other indebtedness of the Company
which, by its express terms, ranks on a parity with the Debentures and is
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until all
amounts owing on the Debentures shall be paid in full, and, as between the
Company, its creditors other than holders of Senior Indebtedness, and the
Debentureholders, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of this Article which otherwise would have been made to
the Debentureholders, shall be deemed to be a payment by the Company on account
of the Senior Indebtedness, it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the Debentureholders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
SECTION 11.4. OBLIGATION OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article or elsewhere in this Indenture or in
the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the
Debentureholders, the obligation of the Company, which is absolute and
unconditional, to pay to the Debentureholders the principal of and interest on
the Debentures as and when the same shall become due and payable in accordance
with their terms, or affect the relative rights of the Debentureholders and
creditors of the Company other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Debentureholder from
exercising all remedies otherwise permitted by applicable law upon an Event of
Default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Debentureholders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending and the Trustee, subject to the
provisions of Section 7.1, and the Debentureholders shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other person making
any payment or distribution to the Trustee or to the Debentureholders for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other
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indebtedness of the Company, the amount thereof or payable thereon, the amount
paid or distributed thereon, and all other facts pertinent thereto or to this
Article.
SECTION 11.5. PAYMENTS ON DEBENTURES PERMITTED.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Debentures shall affect the obligation of the Company to make, or
prevent the Company from making, payment of the principal of or interest on the
Debentures in accordance with the provisions hereof, except as otherwise
provided in this Article.
SECTION 11.6. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Debentures, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action at the request of the
Company as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
SECTION 11.7. KNOWLEDGE OF TRUSTEE.
Notwithstanding the provisions of this Article or any other provisions
of this Indenture, but subject to the provisions of Section 7.1, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee, or the taking
of any other action by the Trustee under this Article Eleven, unless and until
the Trustee shall have received written notice thereof, in the manner required
by Section 1.5, from the Company, any Debentureholder, any Paying Agent, any
Debenture Registrar, or the holder or representative of any class of Senior
Indebtedness.
SECTION 11.8. TRUSTEE MAY HOLD SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.12 or elsewhere in this Indenture shall deprive the Trustee of any of its
rights as such holder.
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SECTION 11.9. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holders may have or be
otherwise charged with.
SECTION 11.10. ALTERATION OF SENIOR INDEBTEDNESS.
The Holders of any Senior Indebtedness may extend, renew, modify or
amend the terms of such Senior Indebtedness or any security therefor and may
release, sell or exchange such security and otherwise deal freely with the
Company, all without notice to or consent of the Debentureholders and without
affecting the liabilities and obligations of the Company, the Trustee or the
Debentureholders under this Indenture or the Debentures.
SECTION 11.11. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 11.7, 11.8, and 11.10 shall not apply to the Company if it acts as
Paying Agent.
SECTION 11.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Debentures or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article Eleven or otherwise.
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ARTICLE XII
Redemption
SECTION 12.1. MANDATORY REDEMPTION.
The Company shall have no mandatory redemption or sinking fund
obligations with respect to the Debentures.
SECTION 12.2. OPTIONAL REDEMPTION.
The Company may redeem all or any portion of the Debentures at any time
and from time to time after ___________ 1, 2000, upon the terms and at the
redemption prices set forth in the form of Debenture included in Section 2.1
hereof.
Any redemption pursuant to this Section 12.2 shall be made pursuant to
the provisions of Section 12.3 through 12.8 hereof.
SECTION 12.3. NOTICES TO TRUSTEE.
If the Company elects to redeem Debentures pursuant to the optional
redemption provisions of Section 12.2 hereof, it shall furnish to the Trustee,
at least thirty (30) days but not more than sixty (60) days before a redemption
date, an Officers' Certificate setting forth the redemption date, the principal
amount of Debentures to be redeemed and the redemption price.
SECTION 12.4. SELECTION OF DEBENTURES TO BE REDEEMED.
If less than all of the Debentures are to be redeemed, the Trustee
shall select the Debentures to be redeemed among the Holders of the Debentures
pro rata or in accordance with a method the Trustee considers fair and
appropriate (and in such manner as complies with applicable legal and stock
exchange requirements, if any). In the event of partial redemption by lot, the
particular Debentures to be redeemed shall be selected, unless otherwise
provided herein, not less than thirty (30) nor more than sixty (60) days prior
to the redemption date by the Trustee from the outstanding Debentures not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debenture selected
for partial redemption, the principal amount thereof to be redeemed. Debentures
and portions of them selected shall be in amounts of $1,000 or whole multiples
of $1,000; except that if all of the Debentures of a Holder are to be redeemed,
the entire outstanding amount of Debentures held by such Holder shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Debentures called for
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redemption also apply to portions of Debentures called for
redemption.
The provisions of the two preceding paragraphs of this Section 12.4
shall not apply with respect to any redemption affecting only a Global
Debenture, whether such Global Debenture is to be redeemed in whole or in part.
In case of any such redemption in part, the unredeemed portion of the principal
amount of the Global Debenture shall be in an authorized denomination.
SECTION 12.5. NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days before a
redemption date, the Company shall mail a notice of redemption to each Holder
whose Debentures are to be redeemed.
The notice shall identify the Debentures to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) if any Debenture is being redeemed in part, the portion of
the principal amount of such Debenture to be redeemed and that, after the
redemption date, upon surrender of such Debenture, a new Debenture or Debentures
in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Debentures called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
and
(6) that interest on Debentures called for redemption
ceases to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall deliver to the Trustee, at least thirty-five (35) days prior to
the redemption date, an Officers' Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph.
If any of the Debentures to be redeemed is in the form of a Global
Debenture, then such notice shall be modified in form but not substance to the
extent appropriate to accord with the procedures of the Depositary applicable to
redemptions.
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SECTION 12.6. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Debentures called for redemption
and not converted into Class A Common Stock pursuant to Article Thirteen hereof
become due and payable on the redemption date at the redemption price.
SECTION 12.7. DEPOSIT OF REDEMPTION PRICE.
One Business Date prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Debentures to be redeemed on
that date. The Trustee or the Paying Agent shall return to the Company any money
not required for that purpose.
If the Company complies with the preceding paragraph, interest on the
Debentures to be redeemed will cease to accrue on the applicable redemption
date, whether or not such Debentures are presented for payment. If any Debenture
called for redemption shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding paragraph, interest
will be paid on the unpaid principal, from the redemption date until such
principal is paid, and on any interest not paid on such unpaid principal, in
each case at the rate provided in the Debentures and in Section 4.1 hereof.
SECTION 12.8. DEBENTURES REDEEMED IN PART.
Upon surrender of a Debenture that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Debenture equal in principal amount to the unredeemed portion
of the Debenture surrendered.
SECTION 12.9. REPURCHASING OF DEBENTURES.
Nothing herein shall prohibit the Company from repurchasing from time
to time all or any portion of the Debentures in the open market or in privately
negotiated transactions.
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ARTICLE XIII
Conversion of Debentures
SECTION 13.1. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this Article
Thirteen and the terms of the form of Debenture set forth in Section 2.3 hereof,
at the option of the Holder, any Debenture or any portion of the principal
amount thereof which is $1,000 or a whole multiple thereof, may, at any time on
or before ___________ 1, 2007, or in case such Debenture or some portion thereof
shall be called for redemption prior to such date, then, with respect to such
Debenture or portion thereof, until and including, but not after, the close of
business on the third (3rd) business day next preceding the date fixed for such
redemption, be converted at the principal amount thereof into Class A Common
Stock at the Conversion Price in effect at the date of conversion.
SECTION 13.2. MANNER OF EXERCISE OF CONVERSION PRIVILEGE.
To exercise the conversion privilege, the Holder shall surrender such
Debenture to the Registrar, together with a duly executed conversion notice in
the form provided on the Debenture, and, if so required by the Registrar, the
Debenture shall also be accompanied by proper assignments thereof to the Company
or in blank for transfer and any requisite Federal and state transfer tax
stamps. Debentures surrendered for conversion during the period from the close
of business on the record date preceding an interest payment date to the opening
of business on such interest payment date shall (unless any such Debenture or
the portion thereof being converted shall have been called for redemption) also
be accompanied by payment in funds in cash or by certified bank cashier's check
of an amount equal to the interest payable on such interest payment date on the
principal amount of such Debenture then being converted. As promptly as
practicable after the surrender of any Debenture for conversion, the Company
shall issue and shall deliver to the Registrar for delivery to such Holder, or
his designee, a certificate or certificates for the number of full shares of
Class A Common Stock issuable upon the conversion of such Debenture or portion
thereof and a check or cash in respect of any fraction of a share of Class A
Common Stock issuable upon such conversion, all as provided in this Section
13.2, together with a Debenture or Debentures in principal amount equal to the
unconverted and unredeemed portion, if any, of the Debenture so converted.
Conversion shall be deemed to have been effected on the date on which notice
(and payment, if required) shall have been received at the Registrar's office
and such Debenture shall have been surrendered to the Registrar, and at that
time the rights of the holder as a Holder shall cease as to that portion of the
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Debenture converted, and the person or persons in whose name or names any
certificate or certificates for shares of Class A Common Stock shall be issuable
upon such conversion shall be deemed to have become on said date the holder or
holders of record of the shares represented thereby; provided, however, that in
the event any such conversion occurs on any date when the stock transfer books
of the Company are closed, the person or persons in whose name or names the
certificates for shares of Class A Common Stock are to be issued will be deemed
the record holder or holders thereof for all purposes on the next succeeding day
on which such stock transfer books are open, and the conversion shall be at the
Conversion Price in effect on such next succeeding day on which such transfer
books are open. Subject to the foregoing, no adjustment shall be made for
interest accrued on any Debenture that shall be converted (unless any such
Debenture or the portion thereof being converted shall have been called for
redemption) or for dividends on any Class A Common Stock that shall be issued
upon the conversion of such Debenture.
SECTION 13.3. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to issue fractions of shares of Class
A Common Stock upon conversion of Debentures. If more than one Debenture shall
be surrendered for conversion at any time by the same holder, the number of full
shares of Class A Common Stock which shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the
Debentures so surrendered. If any fractional interest in a share of Class A
Common Stock would be deliverable upon the conversion of any Debenture or
Debentures, the Company shall make an adjustment therefor in cash equal to the
current market value of such fractional interest computed to the nearest
thousandth of a share at the closing price on the New York Stock Exchange or, if
then traded on any other national securities exchange, the closing price on such
exchange or, if the Class A Common Stock shall not then be traded on a national
securities exchange, the closing price on the Nasdaq National Market System or,
if the Class A Common Stock is not then quoted on the Nasdaq National Market
System, the highest bid quotation on an automated quotation system on the last
business day prior to the date of conversion, or if the Class A Common Stock
shall not then be listed on an exchange, quoted on the Nasdaq National Market
System or included on an automated quotation system, as reported by the National
Quotation Bureau, Inc. or similar reporting service.
SECTION 13.4. CONVERSION PRICE.
The Conversion Price shall be as specified in the form of Debenture set
forth in Section 2.3 hereof or, after adjustment as provided in this Section 13,
the Conversion Price as so adjusted.
70--
<PAGE>
SECTION 13.5. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, (i) issue any shares
of its capital stock as a dividend (or other distribution) on its Class
A Common Stock; (ii) subdivide its outstanding shares of Class A Common
Stock into a greater number of shares; (iii) combine its outstanding
shares of Class A Common Stock into a smaller number of shares, or (iv)
issue by reclassification of its Class A Common Stock any shares of
stock of the Company, the Conversion Price in effect immediately prior
thereto shall be adjusted so that any Debentureholder who thereafter
converts his Debenture shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned or
have been entitled to receive after the happening of any of the events
described above, had such Debenture been converted immediately prior to
the happening of such event. Any adjustment made pursuant to this
subdivision (a) shall become effective, in the case of a dividend, on
the payment date retroactively to immediately after the opening of
business on the day following the record date for the determination of
shareholders entitled to receive such dividend, subject to the
provisions of subdivision (f) of this Section 13.5, and shall become
effective in the case of a subdivision, combination or reclassification
immediately after the opening of business on the day following the day
when such subdivision, combination or reclassification, as the case may
be, becomes effective.
(b) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, issue rights or
warrants entitling anyone to subscribe for or purchase shares of Class
A Common Stock at a price per share less than the then current market
price per share of Class A Common Stock (as defined in subdivision (d)
below) at the Measurement Date (as defined below), the Conversion Price
in effect immediately prior to the issuance of such rights or warrants
shall be adjusted as follows: the number of shares of Class A Common
Stock into which $1,000 principal amount of Debentures was theretofore
convertible shall be multiplied by a fraction, the numerator of which
shall be the number of shares of Class A Common Stock outstanding
immediately prior to such issuance plus the number of additional shares
of Class A Common Stock offered for subscription or purchase, and the
denominator of which shall be the number of shares of Class A Common
Stock outstanding immediately prior to such issuance plus the number of
shares which the aggregate offering price
71--
<PAGE>
of the total number of shares so offered would purchase at such current
market price; and the Conversion Price shall be adjusted by dividing
$1,000 by the new number of shares into which $1,000 principal amount
of Debentures shall be convertible as aforesaid. The term "Measurement
Date" shall mean, with respect to determining current market price in
connection with the issuance of rights or warrants to purchase Class A
Common Stock, the earlier of (i) the date upon which the Company enters
into a bona fide and binding agreement for the issuance of such rights
or warrants and (ii) the issuance or grant thereof. Such adjustment
shall become effective on the date of such issuance, all as determined
by the independent certified public accountants then regularly auditing
the accounts of the Company, whose determination shall be conclusive,
subject to the provisions of subdivision (f) of this Section 13.5.
(c) In case the Company shall, at any time or from time to
time while any of the Debentures are outstanding, distribute to all
holders of shares of Class A Common Stock evidences of its indebtedness
or securities or assets (excluding cash dividends or cash distributions
payable out of retained earnings, or distributions payable in shares of
Class A Common Stock) or rights to subscribe for same (excluding those
referred to in subdivision (b) above), the Conversion Price in effect
immediately prior to such distribution shall be adjusted as follows:
the number of shares of Class A Common Stock into which $1,000
principal amount of Debentures was theretofore convertible shall be
multiplied by a fraction, the numerator of which shall be the current
market price per share of Class A Common Stock (as defined in
subdivision (d) below) on the record date for such distribution, and
the denominator of which shall be such current market price per share
of the Class A Common Stock, less the then fair market value (as
determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the assets or
securities or evidences of indebtedness so distributed or of such
subscription rights applicable to one share of Class A Common Stock;
and the Conversion Price shall be adjusted by dividing $1,000 by the
new number of shares into which $1,000 principal amount of Debentures
shall be convertible as aforesaid. Such adjustment shall become
effective on the date of such distribution retroactively to immediately
after the opening of business on the day following the record date for
the determination of shareholders entitled to receive such
distribution, subject to the provisions of subdivision (f) of this
Section 13.5. For the purposes of this subdivision (c), retained
earnings shall be computed by adding thereto all charges against
retained earnings on account of dividends paid in shares of Class A
Common Stock in
72--
<PAGE>
respect of which the Conversion Price has been adjusted, all as
determined by the independent certified public accountants then
regularly auditing the accounts of the Company, whose determination
shall be conclusive.
(d) For the purpose of any computation under subdivision (b)
and (c) above, the current market price per share of Class A Common
Stock at any date shall be deemed to be the average of the market
values of the Class A Common Stock for the ten (10) consecutive
business days immediately preceding the day in question. The market
value of the Class A Common Stock for each day shall be determined as
provided in Section 13.3 hereof.
(e) Except as herein otherwise provided, no adjustment in the
Conversion Price shall be made by reason of the issuance in exchange
for cash, property or services, of shares of Class A Common Stock, or
any securities convertible into or exchangeable for shares of Class A
Common Stock, or carrying the right to purchase any of the foregoing.
(f) If the Company shall take a record of the holders of Class
A Common Stock for the purpose of entitling them to receive any
dividend, for any subscription or purchase rights or any distribution
and shall, thereafter and before the distribution to stockholders of
any such dividend, subscription or purchase rights or distribution,
abandons its plan to pay or deliver such dividend, subscription or
purchase rights or distribution, then no adjustment of the Conversion
Price shall be required by reason of the taking of such record.
(g) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this subdivision (g) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section 13.5 shall be made to the nearest
cent or to the nearest one-thousandth of a share, as the case may be.
(h) Whenever the Conversion Price is adjusted as herein
provided, the Company shall (i) forthwith place on file at the
corporate trust office of the Trustee and the Registrar a statement
signed by the Chairman of the Board, the President, or an Executive
Vice President of the Company and by its Treasurer or an Assistant
Treasurer showing in detail the facts requiring such adjustment and the
Conversion Price after such adjustment and the statement of the
Company's independent certified public accounts confirming the
Conversion Price
73--
<PAGE>
after such adjustment, and the Trustee and Registrar shall exhibit the
same from time to time to any Holder desiring to inspect such
certificate during normal business hours, and (ii) cause a notice
stating that such adjustment has been effective and the adjusted
Conversion Price to be mailed to the Holders of Debentures at their
last addresses as they shall appear on the books of the Registrar.
SECTION 13.6. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGES.
In case of any reclassification or change of outstanding shares of
Class A Common Stock issuable upon conversion of the Debentures (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), or in case of any
consolidation of the Company with one or more other corporations (other than a
consolidation in which the Company is the continuing corporation and which does
not result in any reclassification or change of outstanding shares of Class A
Common Stock issuable upon conversion of the Debentures), or in case of the
merger of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an entirety
or substantially as an entirety, the Company, or such successor or purchasing
corporation, as the case may be, shall execute with the Trustee a supplemental
indenture which shall conform to the TIA, providing that each Holder shall have
the right to convert their outstanding Debenture into the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of the number of shares of Class A Common Stock into which such Debenture might
have been converted immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Thirteen and any
such adjustments which shall be approved by the Board of Directors and set forth
in such supplemental indenture shall be conclusive for all purposes of this
Section 13.6, and the Trustee shall not be under any responsibility to determine
the correctness of any provision contained in such supplemental indenture
relating to either the kind or amount of shares of stock or securities or
property receivable by Debentureholders upon the conversion of their Debentures
after any such reclassification, change, consolidation, merger, sale or
conveyance.
The above provisions of this Section 13.6 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales and
conveyances.
74--
<PAGE>
SECTION 13.7. TAXES ON CONVERSIONS.
The issue of stock certificates on conversion of Debentures shall be
made without charge to the converting Debentureholder for any issue tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Class A Common Stock (or other security) in any name
other than that of the Holder of any Debenture converted, and the Company shall
be not required to issue or deliver any such stock certificate unless and until
the person or persons requesting the issue thereof shall have paid to the
Company the amount of such tax or shall have established to the satisfaction of
the Company that such tax has been paid.
SECTION 13.8. COMPANY TO RESERVE STOCK.
The Company shall at all times reserve and keep available out of its
authorized but unissuable shares of Class A Common Stock, for the purpose of
effecting the conversion of the Debentures, such number of its duly authorized
shares of Class A Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding Debentures.
The Company covenants that it will in good faith and as expeditiously
as possible take all reasonable steps necessary to ensure that any shares of
Class A Common Stock reserved or to be reserved for the purpose of conversion of
Debentures hereunder may be issued upon conversion without a legend restricting
transfer.
The Company covenants that all shares of Class A Common Stock which may
be issuable upon conversion of Debentures shall upon issue be fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof.
SECTION 13.9. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR CERTAIN
MATTERS.
Neither the Trustee nor any conversion agent shall at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the Conversion Price, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or provided to be employed, herein or in any supplemental indenture in
making such adjustment. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Class A Common Stock, or of any securities or property, which may at
any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any conversion agent makes any representation with
75--
<PAGE>
respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
register the transfer of or deliver any shares of Class A Common Stock or stock
certificates or other securities or property upon the surrender of any Debenture
for the purpose of conversion or to comply with any of the covenants of the
Company contained in this Article Thirteen.
SECTION 13.10. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS.
In the event that the Company shall:
(1) pay any dividend or make any distribution to the
holders of Class A Common Stock otherwise than in cash out of
its retained earnings; or
(2) offer for subscription, pro rata, to the holders of
Class A Common Stock any additional shares of stock of any
class or any other right; or
(3) effect any reclassification or change of outstanding
shares of Class A Common Stock issuable upon the conversion of the
Debentures (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination), or any consolidation of the Company with,
or merger of the Company into, another corporation (other than a
consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding
shares of Class A Common Stock issuable upon conversion of the
Debentures), or any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety;
then, and in any one or more of such events, the Company will give a
Responsible Officer of the Trustee and the Registrar written notice
thereof at least two (2) business days prior to (i) the record date
fixed with respect to any of the events specified in (1) and (2) above,
and (ii) the effective date of any of the events specified in (3)
above; and shall mail a copy of such notice to Holders at their last
addresses, as they appear upon the books of the Registrar.
ARTICLE XIV
Immunity of Directors, Officers, Employees and Stockholders
SECTION 14.1. EXEMPTION FROM INDIVIDUAL LIABILITY.
No Affiliate, officer, director, employee or stockholder, as such, of
the Company, or its Subsidiaries, shall have any liability
76--
<PAGE>
for any obligations of the Company under the Debenture or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Debentureholder by accepting a Debenture hereby expressly waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Debentures.
* * * * * * * * *
*
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the day and year first above written.
Attest: BANKATLANTIC BANCORP, INC.
By:___________________________ By:______________________________________
Alan B. Levan
Chairman
Attest: FIRST TRUST NATIONAL ASSOCIATION
By:____________________________ By:______________________________________
77--
____________, 1997
THE FOLLOWING OPINION IS INTENDED TO BE RENDERED UPON THE
CONSUMMATION OF THE TRANSACTIONS DESCRIBED HEREIN IN
SUBSTANTIALLY THE FORM PRESENTED, ASSUMING NO CHANGES IN THE
FACTS OR THE LAW UPON WHICH SUCH OPINION IS BASED, AND SUBJECT
TO THE RECEIPT, REVIEW AND APPROVAL OF FINAL DOCUMENTS.
Mr. Alan B. Levan
Chief Executive Officer
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
RE: BANKATLANTIC BANCORP, INC. -
$115,000,000 OF CONVERTIBLE SUBORDINATED DEBENTURES
Dear Mr. Levan:
As counsel to BankAtlantic Bancorp, Inc. (the "Corporation"), we have
examined the Amended and Restated Articles of Incorporation and Bylaws of the
Corporation as well as such other documents and proceedings as we have
considered necessary for the purposes of this opinion. We have also examined and
are familiar with the proceedings taken by the Corporation to authorize the
issuance and sale of up to $115,000,000 of convertible subordinated debentures
<PAGE>
Alan B. Levan
____________, 1997
Page 2
of the Corporation (the "Debentures"). In addition, we have examined a copy of
the Corporation's Registration Statement on Form S-3, File No. 333-______, and
that certain Indenture (the "Indenture") between the Corporation and First Trust
National Association, as Trustee, filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, and the Trust Indenture
Act of 1939.
In rendering this opinion, we have assumed, without independent
investigation: (i) the authenticity of all documents submitted to us as
originals; (ii) the conformity to original documents of all documents submitted
to us as certified or photostatic copies and (iii) the genuineness of all
signatures. In addition, as to questions of fact material to the opinions
expressed herein, we have relied upon such certificates of public officials,
corporate agents and officers of the Corporation and such other certificates as
we deemed relevant.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that following the issuance and
delivery of the Debentures by the Corporation in accordance with the terms of
the Indenture, the Debentures will be validly issued, fully paid and
non-assessable and will be binding obligations of the Corporation.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
_____________, 1997
THE FOLLOWING OPINION IS INTENDED TO BE RENDERED UPON THE
CONSUMMATION OF THE TRANSACTIONS DESCRIBED HEREIN IN
SUBSTANTIALLY THE FORM PRESENTED, ASSUMING NO CHANGES IN THE
FACTS OR THE LAW UPON WHICH SUCH OPINION IS BASED, AND SUBJECT
TO THE RECEIPT, REVIEW AND APPROVAL OF FINAL DOCUMENTS.
Mr. Alan B. Levan
Chief Executive Officer
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
Re: BANKATLANTIC BANCORP, INC.
OFFERING OF SHARES OF CLASS A COMMON STOCK
Dear Mr. Levan:
As counsel to BankAtlantic Bancorp, Inc. (the "Corporation"), we have
examined the Amended and Restated Articles of Incorporation and Bylaws of the
Corporation as well as such other documents and proceedings as we have
considered necessary for the purposes of this opinion. We have also examined and
are familiar with the proceedings taken by the Corporation to authorize the
issuance of up to 3,450,000 shares of Class A Common Stock of the Corporation
<PAGE>
Alan B. Levan
____________, 1997
Page 2
(the "Class A Common Stock"). In addition, we have examined a copy of the
Prospectus (the "Prospectus") included in the Corporation's Registration
Statement on Form S-3, File No. 333-________, pursuant to which the Class A
Common Stock will be registered under the Securities Act of 1933, as amended.
In rendering this opinion, we have assumed, without independent
investigation: (i) the authenticity of all documents submitted to us as
originals; (ii) the conformity to original documents of all documents submitted
to us as certified or photostatic copies and (iii) the genuineness of all
signatures. In addition, as to questions of fact material to the opinions
expressed herein, we have relied upon such certificates of public officials,
corporate agents and officers of the Corporation and such other certificates as
we deemed relevant.
Based upon the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that following the issuance and
delivery of the Class A Common Stock against payment of adequate consideration
therefore in accordance with the terms of the Prospectus, the Class A Common
Stock will be validly issued, fully paid and non-assessable.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, AT OR FOR THE YEARS ENDED DECEMBER 31,
------------------- -------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
--------- --------- ---------- --------- --------- --------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings (loss) before income taxes and
extraordinary items ........................ $21,587 $17,087 $ 31,252 $28,437 $26,497 $23,171 $24,493
Fixed interest charges ..................... 55,406 31,349 78,303 66,862 42,227 36,758 56,749
-------- -------- --------- -------- -------- -------- --------
Earnings (loss):
Including fixed interest charges ......... 76,993 48,436 109,555 95,299 68,724 59,929 81,242
Excluding interest expense on deposits ... 42,676 23,724 54,527 48,653 37,078 28,131 33,831
Fixed interest charges excluding interest
expense on deposits ........................ 21,089 6,637 23,275 20,216 10,581 4,960 9,338
Ratios:
Earnings including fixed interest charges to
fixed interest charges ..................... 1.39 1.55 1.40 1.43 1.63 1.63 1.43
Earnings to fixed interest excluding interest
on deposits .............................. 2.02 3.57 2.34 2.41 3.50 5.67 3.62
Dollar deficiency of earnings to fixed
interest charges ........................... $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00
======== ======== ========= ======== ======== ======== ========
</TABLE>
1
EXHIBIT 23.1
CONSENT OF COUNSEL
We hereby consent to the use of our opinions included herein and to all
references to this firm under the heading "Legal Matters" in the Prospectus
constituting a part of this Registration Statement on Form S-3 of BankAtlantic
Bancorp, Inc.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Miami, Florida
October 24, 1997
ACCOUNTANTS' CONSENT
The Board of Directors
BankAtlantic Bancorp, Inc.
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Fort Lauderdale, Florida
October 23, 1997
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
BANKATLANTIC BANCORP, INC.
(Exact name of Registrant as specified in its charter)
Florida 65-0507804
(State of Incorporation) (I.R.S. Employer
Identification No.)
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
(Address of Principal Executive Offices) (Zip Code)
% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
(Title of the Indenture Securities)
<PAGE>
GENERAL
1. GENERAL INFORMATION Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee, describe
each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number 333-34585.
* Incorporated by reference to Registration Number 22-27000.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 17th day of October,
1997.
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Assistant Vice President
/s/ Kathe M Barrett
- ----------------------
Kathe M Barrett
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: October 17, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Assistant Vice President
