As filed with the Securities and Exchange Commission on April 4, 1997.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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
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(State or other jurisdiction of
incorporation or organization)
6035
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(Primary Standard Industrial
Classification Code Number)
65-0507804
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(I.R.S. Employer
Identification Number)
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
Telephone (954) 760-5200
--------------------------
(Address, including Zip Code, and telephone number, including area
code, of registrant's principal executive offices)
Alan B. Levan
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
Telephone (954) 760-5200
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(Name, address, including Zip Code,
and telephone number,
including area code, of agent for service)
Please send copies of all communications to:
Alison W. Miller, Esq.
Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box|_|.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box |X|.
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering |_| .
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, please 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 under
the Securities Act, please check the following box |_|.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of each class Proposed maxi- Amount of
of securities to be Amount to be Proposed maximum mum aggregate registration
registered registered(1) offering price offering price fee
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<S> <C> <C> <C> <C>
Class A Common Stock 5,615,235 shares $10.24 $57,500,006.00 $17,424.25
====================================================================================================================================
</TABLE>
(1)Plus such presently indeterminable number of shares, if any, as
shall be issuable from time to time as required pursuant to the adjustment
provisions of the 6-3/4% Convertible Subordinated Debentures Due 2006 and the
Indenture to which such Debentures relate.
--------------------
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>
PROSPECTUS 5,615,235 SHARES
BANKATLANTIC BANCORP, INC.
CLASS A COMMON STOCK
BankAtlantic Bancorp, Inc. ("BBC" or the "Company"), a Florida
corporation, intends to issue from time to time up to 5,615,235 shares of its
class A common stock, $0.01 par value ("Class A Common Stock"), to holders of
$57,500,000 aggregate principal amount of its 6 3/4% Convertible Subordinated
Debentures due 2006 (the "Debentures") upon conversion of the Debentures in
accordance with the terms thereof. The Debentures were issued on July 3, 1996
pursuant to a Registration Statement on Form S-3 (Registration No. 333-05827)
under the Securities Act of 1933, as amended (the "Act"). The Debentures are
convertible at any time prior to maturity, unless previously redeemed, into
shares of Class A Common Stock at a conversion price of $10.24 per share,
subject to adjustment in certain circumstances, as set forth under "Plan Of
Distribution." No additional consideration is payable upon conversion of the
Debentures.
See "Risk Factors" beginning on page 4 of this Prospectus 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.
No person is authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation should not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to sell,
or a solicitation of an offer to purchase the securities offered by this
Prospectus in any jurisdiction in which, or to or from any person to or from
whom, it is unlawful to make such an offer, or solicitation of an offer. Neither
the delivery of this Prospectus nor any distribution of the securities offered
pursuant to this Prospectus shall, under any circumstances, create any
implication that there has been no change in the information set forth herein or
in the affairs of the Company since the date of this Prospectus or that the
information herein is correct as of any time subsequent to its date.
The date of this Prospectus is April 4, 1997.
<PAGE>
TABLE OF CONTENTS
PAGE
available information......................................................... 2
incorporation of certain documents by reference ......................... .... 3
the company................................................................... 3
risk factors.................................................................. 4
plan of distribution.......................................................... 8
transferability............................................................... 9
legal matters................................................................. 9
experts....................................................................... 9
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (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 Act, with respect to the Class A
Common Stock offered hereby. This Prospectus does not contain all 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 and
such Class A Common Stock, 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.
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<PAGE>
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 description of the Company's Class A Common Stock
contained in the Company's Form 8-A, dated March 7,
1996.
(3) The Company's Current Report on Form 8-K, dated
January 6, 1997, filed with the Commission on January
13, 1997.
(4) The Company's Current Report on Form 8-K, dated
February 4, 1997, filed with the Commission on
February 13, 1997.
Financial and other information included in the reports incorporated by
reference herein do not reflect stock splits or dividends declared subsequent to
the respective dates of such reports, except as indicated in such reports. 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 this offering of Class
A Common Stock 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 (or in any
other subsequently filed document which also is incorporated by reference
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.
THE COMPANY
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").
The Company owns all of the outstanding capital stock of BankAtlantic. The
Company's activities to date have consisted solely of activities incident to its
ownership of BankAtlantic.
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
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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 such as the purchase of mortgage-backed securities, tax
certificates and other investment securities. 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. For further information about
the business and operations of the Company and BankAtlantic, reference is made
to the Company's reports incorporated herein by reference. See "Incorporation of
Certain Documents by Reference."
RISK FACTORS
An investment in the Class A Common Stock offered hereby 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.
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 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.
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 dividends on the Class A Common
Stock and the Class B Common Stock will be dependent, in part, on the ability of
BankAtlantic to pay dividends, or otherwise to advance or transfer funds to the
Company in amounts sufficient to service the Company's obligations. The Company
is currently obligated to pay interest semi-annually on the Company's
outstanding 9% Subordinated Debentures due 2005 (the "9% Debentures") and its 6
3/4% Convertible Subordinated Debentures due 2006 (the "Convertible Debentures")
and to make any other payments with respect to securities issued by the Company
in the future having a preference over the Class A Common Stock or Class B
Common Stock with respect to the payment of interest or dividends. There is no
restriction on the ability of the Company to issue securities which have a
preference over the Class A Common Stock and Class B Common Stock.
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
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<PAGE>
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 December 31, 1996, BankAtlantic's capital exceeded its fully
phased-in capital requirements by approximately $51 million and BankAtlantic
qualified as a Tier 1 association under applicable OTS regulations. However, all
capital distributions of BankAtlantic are also subject to the OTS' right to
object to a distribution on safety and soundness grounds. There is no assurance
that BankAtlantic will be 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 pay dividends on the Class A Common Stock and Class B Common Stock.
Limited Trading Market for Class A Common Stock
The Class A Common Stock was first issued by the Company and commenced
trading on the Nasdaq National Market on March 11, 1996. Accordingly, because of
the relatively limited trading history for the Class A Common Stock, there is no
assurance that an active trading market for the Class A Common Stock will
develop or that any active trading market will be sustained or that a holder of
Class A Common Stock will have the ability to dispose of his shares in a liquid
market.
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. There can be no assurance that the
limited voting entitlement of the Class A Common Stock will not have an adverse
effect on its marketability or market price and no assurance can be given that
the Class A Common Stock and the Class B Common Stock will trade at the same
price or even within a narrow range of prices. BFC Financial Corporation
("BFC"), which owned at December 31, 1996 4,876,124 shares or approximately 46%
of the Company's issued and outstanding Class B Common Stock and 2,742,820
shares or approximately 35% of the issued and outstanding Class A 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 17% of the
shares of BFC, respectively.
Loan Portfolio Considerations
Loans receivable, net at BankAtlantic increased by approximately $996
million or 120% at December 31, 1996, from December 31, 1995. All components of
lending increased in 1996 due to approximately $395.0 million of loans acquired
in connection with the October 1996 acquisition of Bank of North America, a
Broward County based commercial bank, $465.9 million of wholesale
5
<PAGE>
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 compared to 1995. Commercial real estate and
construction loans at BankAtlantic increased by approximately $155.4 million or
41% at December 31, 1996 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 Dade, Broward, 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 located outside BankAtlantic's primary market
area. Future purchases of wholesale residential loans will more than likely
consist of loans secured by properties located outside BankAtlantic's market
area.
BankAtlantic also makes various types of secured and unsecured consumer
loans, including indirect automobile loans, and commercial business loans.
Consumer and commercial business loans generally involve more credit risk than
residential mortgage loans because of the higher potential of defaults and the
difficulties involved in disposing of the collateral, if any.
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 December 31, 1996, BankAtlantic had a one year cumulative
positive gap of .42%. This positive one year gap position may, as noted above,
have a negative impact on earnings in a falling 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
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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
which could have a material adverse affect on BankAtlantic's operations.
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. In addition, recently enacted legislation
could result in increased competition from bank holding companies headquartered
outside of Florida.
Accounting for Acquisitions
Acquisitions are accounted for either as a "purchase" or as a "pooling
of interests." The consideration utilized is one of many factors considered in
determining the accounting treatment of an acquisition. If cash or Class A
Common Stock is utilized, the acquisition will generally be accounted for as a
"purchase." If Class B Common Stock is utilized and all other required
conditions relating to the parties and the transaction are met, the acquisition
will be accounted for as a "pooling of interests." Under the "purchase" method,
the assets and liabilities are recorded by the acquiror at their fair market
values and any difference between the purchase price and the fair value of the
tangible and identifiable intangible assets and liabilities is recorded as
goodwill. Goodwill is generally amortized over a period generally not exceeding
fifteen years and such amortization of goodwill will reduce earnings. Under the
"pooling of interests" method, the historical values of the assets, liabilities
and shareholders' equity of the combining companies are considered, no goodwill
is recorded and accordingly, the earnings of the resulting entity are not
impacted by the amortization of goodwill. The Company and BankAtlantic intend to
actively pursue acquisitions. BankAtlantic paid cash consideration in connection
with its acquisitions of MegaBank and BNA and it is likely that BankAtlantic or
the Company will in the future make additional acquisitions with either cash or
Class A Common Stock. If an acquisition is made and the consideration utilized
is cash or Class A Common Stock, the acquisition will generally be accounted for
as a "purchase" rather than under the "pooling of interests" accounting method.
It is likely that any such acquisitions will result in the creation of goodwill
and accordingly, future results will reflect the amortization of any goodwill
recorded.
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PLAN OF DISTRIBUTION
General
The Debentures were issued under an Indenture (the "Indenture"), dated
as of July 3, 1996, between the Company and First Trust National Association, as
Trustee (the "Trustee"). The Debentures are general unsecured obligations of the
Company in an aggregate principal amount of $57,500,000, subordinated to all
existing and future Senior Indebtedness, as defined in the Indenture. The
Debentures were issued in denominations of $1,000 and integral multiples thereof
in fully registered form only. The Debentures will mature on July 1, 2006 and
bear interest at a rate of 6 3/4% per annum. Interest is payable semiannually,
on January 1 and July 1, to the registered holders of record on the preceding
December 15 and June 15, respectively.
Conversion
The Debentures are convertible at their principal amount into Class A
Common Stock at any time prior to redemption or maturity, at a conversion price
of $10.24 subject to adjustment as described below. The right to convert
Debentures which are called for redemption will terminate at the close of
business on the third business day immediately preceding the redemption date and
will be lost if not exercised prior to that time. The conversion price of the
Debentures is subject to adjustment upon the occurrence of certain events,
including (i) the payment of a dividend to holders of Class A Common Stock
payable in shares of the Company's capital stock; (ii) the subdivision,
combination or reclassification of outstanding shares of Class A Common Stock
and Class B 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; or (iv) the issuance of rights or warrants
entitling anyone to subscribe for 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.
No adjustment in the conversion price is required unless such
adjustment would require a change of at least 1% in the conversion price then in
effect; provided that any adjustment that would otherwise be required to be made
shall be carried forward and taken into account in any subsequent adjustment.
Fractional shares of Class A Common Stock will not be issued upon conversion,
but, in lieu thereof, the Company will pay an appropriate amount in cash based
upon the market price of the Class A Common Stock. Upon conversion, no payment
of accrued interest will be made (unless the Debenture 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.
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
8
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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.
Redemption Rights
The Debentures are redeemable at the Company's option, in whole or in
part, after July 1, 1999 at a redemption price which is a premium of the
principal amount outstanding, starting at 104% of principal amount until July 1,
2000 and decreasing to 100% on July 1, 2003 and thereafter.
TRANSFERABILITY
The shares of Class A Common Stock issuable upon conversion of the
Debentures will be freely transferable in the hands of persons other than
affiliates of the Company. The Common Stock is listed on the Nasdaq National
Market under the symbol "BANCA." Similarly, the Debentures are freely
transferable in the hands of persons other than affiliates of the Company. The
Debentures are listed on the Nasdaq SmallCap Market under the symbol "BANCG".
LEGAL MATTERS
The validity of the shares of Class A Common Stock to be issued upon
conversion of the Debentures will be passed upon for the Company by Stearns
Weaver Miller Weissler Alhadeff & Sitterson, P.A., 150 West Flagler Street,
Suite 2200, Miami, Florida 33130-1557.
EXPERTS
The consolidated financial statements of BankAtlantic Bancorp, Inc.
incorporated in this Prospectus by reference to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996 have been so incorporated in
reliance on the reports of KPMG Peat Marwick LLP, independent certified public
accountants, upon the authority of said firm as experts in accounting and
auditing.
9
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amount of expenses
(other than underwriting discounts and commissions) to be borne by the
Registrant in connection with the Offering:
SEC Registration Fee.................................................$17,424.25
Nasdaq National Market Listing Fee................................... 17,500.00
Legal Fees and Expenses.............................................. 5,000.00
Miscellaneous Expenses............................................... 5,000.00
TOTAL FEES AND EXPENSES.....................................$44,924.25
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:
Exhibits Description
4.1 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. 333-05827)).
4.2 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)).
4.3 Indenture, dated as of July 3, 1996, with respect to the
Registrant's 6-3/4% Convertible Subordinated Debentures due
2006 (incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-3, filed on
June 5, 1996 (Registration No. 333-05827)).
II-1
<PAGE>
4.4 Specimen Convertible Subordinated Debenture (incorporated by
reference to Exhibit 4.2 to the Registrant's Registration
Statement on Form S-3, filed on June 5, 1996 (Registration
No. 333-05827))
5 Opinion of Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A. regarding the legality of the securities
being offered.
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
23.2 Consent of KPMG Peat Marwick LLP regarding the Registrant.
24 Power of Attorney (included with signature pages to this Registration
Statement).
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-2
<PAGE>
(b) 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.
(c) 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.
II-3
<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 4th day
of April, 1997.
BANKATLANTIC BANCORP, INC.
By: /s/Alan B. Levan
---------------------
Chairman of the Board of Directors,
President and Chief Executive Officer
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>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/Alan B. Levan
- ---------------- Chairman of the Board, April 4, 1997
Alan B. Levan Chief Executive Officer
and President
/s/Jasper R. Eanes
- ------------------ Executive Vice President, April 4, 1997
Jasper R. Eanes Chief Financial Officer
II-4
<PAGE>
/s/John E. Abdo
- --------------- Vice-Chairman of the April 4, 1997
John E. Abdo Board
- --------------- Senior Executive Vice 1997
Frank V. Grieco President and Director
/s/Steven M. Coldren
- ----------------- Director April 4, 1997
Steven M. Coldren
/s/Mary K. Ginestra
- ---------------- Director April 4, 1997
Mary E. Ginestra
/s/Bruno DiGiulian
- --------------- Director April 4, 1997
Bruno DiGiulian
/s/Charlie C. Winningham, II
- ------------------------- Director April 4, 1997
Charlie C. Winningham, II
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Description Numbered Page
5 Opinion of Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A. regarding the legality
of the securities being offered.
23.1 Consent of Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
23.2 Consent of KPMG Peat Marwick LLP
regarding the Registrant.
II-6
Exhibit 5
April 4, 1997
Mr. Alan B. Levan
Chief Executive Officer
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
RE: BankAtlantic Bancorp, Inc.
Registration Statement on Form S-3 -
5,615,235 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 5,615,235 shares of the Corporation's Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"), to be issued by the
Corporation upon conversion of the Corporation's 6 3/4% convertible subordinated
debentures (the "Debentures"). In addition, we have examined a copy of the
Corporation's Registration Statement on Form S-3, filed with the Securities and
Exchange
<PAGE>
Alan B. Levan
April 4, 1997
Page 2
Commission on April 4, 1997, under the Securities Act of 1933, as amended.
Based up on the foregoing, and having regard to legal considerations
which we deem relevant, we are of the opinion that the Class A Common Stock,
when issued and delivered by the Corporation upon conversion of the Debentures
in accordance with the terms of the Debentures, will be validly issued, fully
paid and non-assessable.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Exhibit 23.1
CONSENT OF COUNSEL
We hereby consent to the use of our opinion included herein and to all
references to this firm under the heading "Legal Matters" in the Prospectus
constituting a part of this Registration Statement of BankAtlantic Bancorp,
Inc., on Form S-3.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Miami, Florida
April 4, 1997
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
BankAtlantic Bancorp, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-3 of BankAtlantic Bancorp, Inc. of our report dated January 28, 1997 relating
to the consolidated statements of financial condition of BankAtlantic Bancorp,
Inc. and subsidiaries as of December 31, 1996 and 1995 and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the years in the three year period ended December 31, 1996 which report
appears in the December 31, 1996 annual report on Form 10-K of BankAtlantic
Bancorp, Inc.
/s/ KPMG Peat Marwick LLP
Fort Lauderdale, Florida
April 3, 1997
