As filed with the Securities and Exchange Commission on May 22, 1998
REGISTRATION NO. 333 - 53107
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
BANKATLANTIC BANCORP, INC.
(Exact name of registrant as specified in its charter)
Florida
(State or other Jurisdiction of Incorporation or Organization)
6035
------
(Primary Standard Industrial Classification Code Number)
65-0507804
-------------
(I.R.S. Employer Identification No.)
BankAtlantic Bancorp, Inc.
1750 E. Sunrise Boulevard
Fort Lauderdale, Florida 33304
(954) 760-5000
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
Alan B. Levan
Chairman, President & Chief Executive Officer
BankAtlantic Bancorp. Inc.
1750 E. Sunrise Boulevard
Fort Lauderdale, Florida 33304
(954) 760-5000
(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. RONALD H. JANIS, ESQ.
Stearns Weaver Miller Weissler Pitney, Hardin, Kipp & Szuch
Alhadeff & Sitterson, P.A. P.O. Box 1945
Museum Tower Morristown, New Jersey 07962
150 West Flagler Street (973) 966-8263
Miami, Florida 33130
(305) 789-3500
<PAGE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At
the Effective Time of the Merger, as defined in the Acquisition Agreement, dated
as of February 9, 1998 (the "ACQUISITION AGREEMENT") between BankAtlantic
Bancorp, Inc. ("BANCORP"), Ryan, Beck & Co., Inc. ("RYAN, BECK") and BCP
Acquisition Corporation ("BCP"), attached as Appendix A to the Proxy
Statement-Prospectus.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH
DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SECTION 8(A), MAY DETERMINE.
=======================
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This Pre-Effective Amendment to the Registration Statement on Form S-4
is being filed solely for the purpose of filing Exhibits 5, 8.1 and 23.1 hereof.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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 21. 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
- -------- -----------
2.1 Acquisition Agreement, dated as of February 9, 1998, by and
between the Registrant, Ryan Beck & Co., Inc. and BCP
Acquisition Corporation (included herewith as Appendix A to the
Proxy Statement-Prospectus filed as part of this Registration
Statement).
2.2 Form of Voting Agreement, dated as of February 9, 1989, by and
between the Registrant and each member of the Board of
Directors of Ryan, Beck & Co., Inc. (included herewith as
Exhibit A to Appendix A to the Proxy Statement-Prospectus filed
as part of this Registration Statement).
2.3 Form of Stock Option Agreement, dated as of February 9, 1989,
by and between the Registrant and Ryan, Beck & Co., Inc.
(included herewith as Appendix B to the Proxy
Statement-Prospectus filed as part of this Registration
Statement).
2.4 Form of Independence Agreement, dated as of February 9, 1989,
between the Registrant and Ryan, Beck & Co., Inc. (included
herewith as Exhibit E to Appendix A to the Proxy
Statement-Prospectus filed as part of this Registration
Statement).
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 Articles of Amendment to Amended and Restated Articles of
Incorporation of the Registrant (incorporated by reference to
Exhibit 3.2 the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1997, filed on March 13, 1998).
3.3 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 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 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A. regarding validity of the shares of Class A Common Stock
being offered.
4
<PAGE>
8.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A. regarding certain federal income tax matters.
8.2 Opinion of Pitney, Hardin, Kipp & Szuch regarding certain
federal income tax matters.*
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A.
23.2 Consent of Pitney, Hardin, Kipp & Szuch.*
23.3 Consent of KPMG Peat Marwick LLP.*
23.4 Consent of Deloitte & Touche, LLP.*
23.5 Consent of Trien, Rosenberg, Felix, Rosenberg, Barr & Weinberg*
23.6 Consent of Duff & Phelps, LLC.*
24 Power of Attorney (included with signature pages to this
Registration Statement).
99 Form of Ryan, Beck & Co., Inc. Common Stock Proxy Card for
meeting of Stockholders of Ryan, Beck & Co., Inc.*
- ----------
* Previously filed
Item 22. 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) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the Prospectus pursuant
to Items 4, 10(b), 11 or 13 of this Form within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through the
date of responding to the request.
(c) The undersigned Registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
(d) (1) The undersigned registrant hereby undertakes as follows: that
prior to any public reoffering of the securities registered hereunder through
use of a prospectus which is a part of this registration statement, by any
person or party who is deemed to be an underwriter within the meaning of Rule
145(c), the issuer undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
(2) The registrant undertakes that every prospectus (i) that
is filed pursuant to paragraph (1) immediately preceding, or (ii) that purports
to meet the requirements of section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415 (ss.230.415 of
this chapter), wilL be filed as a part of an amendment to the registration
statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be
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<PAGE>
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.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 22nd day of May, 1998.
BANKATLANTIC BANCORP, INC.
By: /S/ ALAN B. LEVAN
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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 Jasper R. Eanes 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, May 22, 1998
- --------------------------- Chief Executive Officer
Alan B. Levan and President
/S/ JASPER R. EANES Executive Vice President, May 22, 1998
- --------------------------- Chief Financial Officer
Jasper R. Eanes
/S/ JOHN E. ABDO Vice-Chairman of the Board May 22, 1998
- ---------------------------
John E. Abdo
_____________________________ Senior Executive Vice May __, 1998
Frank V. Grieco President and Director
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
/S/ STEVEN M. COLDREN Director May 22, 1998
- ---------------------------
Steven M. Coldren
/S/ MARY E. GINESTRA Director May 22, 1998
- ---------------------------
Mary E. Ginestra
____________________________ Director May __ , 1998
Bruno DiGiulian
/S/ CHARLIES C. WINNINGHAM Director May 22, 1998
- --------------------------
Charlie C. Winningham, II
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
5 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A. regarding validity of the shares of Class A Common Stock
being offered.
8.1 Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A. regarding certain tax matters relating to the transaction.
8.2 Opinion of Pitney, Hardin, Kipp & Szuch regarding certain tax
matters relating to the transaction.*
23.1 Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A.
23.2 Consent of Pitney, Hardin, Kipp & Szuch.*
23.3 Consent of KPMG Peat Marwick L.L.P.*
23.4 Consent of Deloitte & Touche, LLP.*
23.5 Consent of Trien, Rosenberg, Felix, Rosenberg, Barr &
Weinberg.*
23.6 Consent of Duff & Phelps, LLC.*
99 Form of Ryan, Beck & Co., Inc. Common Stock Proxy Card for
meeting of Stockholders of Ryan, Beck & Co., Inc.*
- ------------------------------
* Previously filed.
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EXHIBIT 5
May 22, 1998
Mr. Alan B. Levan
Chief Executive Officer
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
RE: BANKATLANTIC BANCORP, INC. - MERGER OF RYAN, BECK & CO., INC.
AND INTO BCP ACQUISITION CORPORATION
Dear Mr. Levan:
As counsel to BankAtlantic Bancorp, Inc., a Florida corporation (the
"Corporation"), we have examined the 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 in connection with
the merger (the "Merger") of Ryan, Beck & Co., Inc., a New Jersey corporation
("Ryan, Beck"), with and into BCP Acquisition Corporation, a Florida
corporation, which is a wholly-owned subsidiary of the Corporation, and the
registration under the Securities Act of 1933, as amended, of the shares of the
Class A Common Stock, par value $.01 per share (the "Shares"), of the
Corporation to be issued in connection with the Merger, all as more fully
described in the Corporation's Registration Statement on Form S-4 (the
"Registration Statement"), filed with the Securities and
<PAGE>
Alan B. Levan
May 22, 1998
Page 2
Exchange Commission on May 20, 1998. We have also examined a copy of the
Acquisition Agreement (the "Agreement") set forth as Appendix A to the Proxy
Statement-Prospectus of the Corporation and Ryan, Beck which comprises a part of
the Registration Statement. We have assumed the genuineness of signatures on and
the authenticity of all documents submitted to us as copies. Also, we have
relied upon such certificates of public officials, corporate agents and officers
of the Corporation and such other certificates with respect to the accuracy of
material factual matters contained therein which were not independently
established.
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 Shares by the Corporation in accordance with the terms of the
Agreement and in the manner contemplated by the Registration Statement, the
Shares will be validly issued, fully paid and non-assessable.
Very truly yours,
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
EXHIBIT 8.1
May 22, 1998
BankAtlantic Bancorp, Inc.
1750 E. Sunrise Blvd.
Fort Lauderdale, FL 33304
Re: REORGANIZATION TREATMENT OF PROPOSED MERGER
Ladies and Gentlemen:
We have acted as counsel for BankAtlantic Bancorp, Inc., a Florida
corporation ("Bancorp"), and BCP Acquisition Corporation, a New Jersey
corporation ("Acquisition"), in connection with the merger (the "Merger") of
Ryan, Beck & Co., Inc. (the "Company") with and into Acquisition, to be
accomplished pursuant to an Acquisition Agreement dated February 9, 1998 (the
"Merger Agreement"), by and among Bancorp, Acquisition, and the Company. Our
opinion has been requested to the effect that the Merger will be treated for
federal income tax purposes as a reorganization under Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that Bancorp,
Acquisition, and the Company will each be a party to such reorganization within
the meaning of Section 368(b) of the Code.
We have examined the law and such documents as we have deemed necessary
to render our opinion, including the Merger Agreement and the schedules and
exhibits attached thereto and the representations (without regard to any
knowledge qualifications affecting the tax representations) of Bancorp,
Acquisition, and the Company furnished to us for purposes of providing this
opinion
<PAGE>
BankAtlantic Bancorp, Inc.
May 22, 1998
Page 2
(the "Representation Letter"). We have assumed for purposes of our opinion that
the Merger will be carried out in accordance with the terms of the Merger
Agreement and its exhibits. As to questions of fact material to our opinion, we
have relied upon statements in the Merger Agreement and exhibits thereto and in
the Representation Letter, without undertaking to verify such statements and
representations by independent investigation.
The opinion rendered herein is based upon the provisions of the Code,
Treasury Department proposed, temporary and final regulations, judicial
decisions, and rulings and administrative interpretations of the Internal
Revenue Service, as each of the foregoing exists on the date hereof. The opinion
rendered below is not binding on the Internal Revenue Service or a court of law,
and no assurance can be given that legislative or administrative action or
judicial decisions that differ from the opinion rendered below will not be
forthcoming. Any such differences could be retroactive to transactions or
business operations prior to such action or decisions.
We express no opinion as to any tax consequences other than those under
the federal income tax laws of the United States. In particular, we express no
opinion as to any tax consequences under the tax laws of any state, locality, or
any country other than the United States, or as to any matter not specifically
addressed below. We express no opinion as to the accuracy of the representations
or the reasonableness of the assumptions relied upon by us in rendering this
opinion.
Based on the foregoing, it is our opinion, as of the date hereof and
under existing law, that for federal income tax purposes:
The Merger will be treated as a reorganization under Section 368(a) of
the Code and Bancorp, Acquisition, and the Company will each be a party to such
reorganization within the meaning of Section 368(b) of the Code; and that:
(i) no gain or loss will be recognized for federal income tax
purposes by the Company stockholders upon the exchange in the Merger of
shares of Company common stock solely for Bancorp stock (except with
respect to cash received in lieu of a fractional share interest in
Bancorp stock);
(ii) the basis of Bancorp stock received in the Merger by the
Company stockholders (including the basis of any fractional share
interest in Bancorp stock deemed received) will be the same as the
basis of the shares of the Company common stock surrendered in exchange
therefor;
<PAGE>
BankAtlantic Bancorp, Inc.
May 22, 1998
Page 3
(iii) the holding period of Bancorp stock received in the
Merger by the Company stockholders (including the holding period of any
fractional share interest in Bancorp stock deemed received) will
include the period during which the shares of Company common stock
surrendered in exchange therefore were held by the Company
stockholders, provided such shares of Company common stock were held as
capital assets at the effective time of the Merger; and
(iv) cash received by a holder of Company common stock in lieu
of a fractional share interest in Bancorp stock will be treated as
received in exchange for such fractional share interest and, provided
the fractional share would have constituted a capital asset in the
hands of such holder, the holder should in general recognize capital
gain or loss in an amount equal to the difference between the amount of
cash received and the portion of the adjusted tax basis in the Company
common stock allocable to the fractional share interest.
We express no opinion as to the effect of the Merger on any stockholder
that is required to recognize unrealized gains and losses for federal income tax
purposes at the end of each taxable year under a mark-to-market system. The tax
consequences described above may not be applicable to the Company stockholders
that acquired the stock of the Company pursuant to the exercise of an employee
stock option or right or otherwise as compensation, that hold Company common
stock as part of a "straddle" or "conversion transaction" for federal income tax
purposes or that are insurance companies, securities dealers, financial
institutions or foreign persons.
We expressly disclaim any obligation or undertaking to update or modify
this opinion as a consequence of any future changes in applicable laws or
regulations or the facts bearing upon this opinion. No opinion may be implied or
may be inferred beyond the matters expressly stated herein.
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 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-4 of BankAtlantic
Bancorp, Inc.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Miami, Florida
May 22, 1998
